FRANCIS GAKLI DZOKOTO vs AKWASI BIO AND ANOTHER
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT
    KUMASI - A.D 2019
FRANCISGAKLI DZOKOTO - (Plaintiff)
AKWASI BIO AND ANOTHER - (Defendant)

DATE:  19TH MARCH, 2019
SUIT NO:  P/RPC 07/2016
JUDGES:  HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE
LAWYERS:  MRS LIZZY PEARL ADDISON FOR THE PLAINTIFF
JUDGEMENT

On 20th November, 2015, the plaintiff instituted action against the defendants seeking the following reliefs:

1. The Plaintiff claims against the Defendant for cash sum of Sixty-five thousand Ghana cedis (GHc 65, 000.00) being the total sum of money the Defendant owes the Plaintiff which defendant has refused to refund the said amount despite persistent demands.

2. Interest on the said amount at the prevailing bank rate from December 2009

3. Costs.

 

The gravamen of the plaintiff’s case is that sometime in October, 2011 he was contracted by the defendants to manufacture and supply 500 pieces of beds to some selected second cycle schools at a unit price of GHCC 135 per bed amounting to GHC 67,500.00. It is the plaintiff’s case that the defendants made an advance payment of GHC 5000 prior to his supply of the beds to the said schools and that he incurred a transportation cost of GHC 2,500.00. Thus, the outstanding amount to be paid by the defendants stands at GHC 65,000.00.

The 1st defendant entered an appearance and in his defence he avers that there is no contractual relationship between himself and the plaintiff. He claims that he only accompanied the 2nd defendant to the plaintiff and introduced the former to the latter. He insists that it was the 2nd defendant who dealt with the plaintiff and that the 2nd defendant advanced the GHC 5000.00 to the plaintiff in his presence.

The 2nd defendant did not participate in the trial, although he was served with the writ of summons and statement of claim by substituted service per an order of the court dated 12th May, 2016. This was after the plaintiff failed in his attempt to effect personal service.

 

After an unsuccessful attempt at settlement, the following issues were set down for hearing:

1. Whether or not defendants engaged the Plaintiff to manufacture seven hundred and fifty (750) pieces of school furniture for various second cycle schools within the Ashanti Region?

2. Whether or not the Plaintiff performed his duty and manufactured the furniture as Defendants instructed him?

3. Whether or not the furniture manufactured by the plaintiff were delivered and accepted by the schools to which they were supplied?

4. Whether or not the plaintiff made initial payment of five thousand Ghana cedis (GHc 5000.00) for the transportation of the furniture for the various schools?

5. Whether or not the defendants have failed or refused to pay the plaintiff for the manufacture of the said furniture for the various schools?

6. Whether or not the defendants owe the plaintiff an amount of Sixty-five thousand Ghana cedis (GHc 65, 000.00) jointly or severally?

 

In this judgment, I shall first determine whether or not the 1st defendant was a party to the contract and flowing from that I shall determine the issues set down for hearing.

To succeed in his claim, the plaintiff is required to prove his case to the required standard in civil suits, that is by the preponderance of probabilities as required by sections 11(4) and 12 of the Evidence Act, 1975 (NRCD 323). In other words, the Plaintiff must demonstrate to the satisfaction of the court that his case is more probable than not, else he loses. Thus, in Takoradi Flour Mills v Samir Faris [2005-2006] SCGLR 882 at 884, the Court held as follows:

“It is sufficient to state that 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.”

 

Is the 1st plaintiff a party to the contract?

In the case of Mojolagbe v. Larbi and Others (1959) GLR 190, the court held that where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances or circumstances and his averment is denied, he does not prove it by merely going into the witness box and repeating this averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can be satisfied that what he avers is true.

The plaintiff is contending that the 1st defendant is also in breach of the agreement, as the 1st and 2nd defendants entered into the contract with him. The 1stdefendant is also saying that the plaintiff entered into the contract with the 2nd defendant only. However, no cogent evidence was led by the plaintiff to prove that the 1st defendant was indeed a party to the contract. The plaintiff and his witness only repeated the claim that the 1st defendant is a contracting party when they testified on oath.

The plaintiff’s allegation that the 1st defendant was a party to the contract could have been established in a very positive way, most especially when he alleged that he issued a receipt to the defendants when they allegedly paid GHC 5,000.00 to him. In whose name was the receipt issued? Was it issued jointly to the defendants? Beside the bare assertion, the receipt was not tendered in evidence to satisfy the court that the assertion that the 1st defendant was a party to the contract is true. If indeed the 1st defendant was a party to the contract his name would have reflected on the face of the receipt. As an originator of the document (receipt), the plaintiff ought to have tendered it to prove his assertion.

 

The plaintiff also alleged that he supplied the various quantities of beds to the following schools on behalf the defendants:

i. Antoa Senior High School            150 pieces

ii. Ejisuman Senior High School      150 pieces

iii. Juaben Senior High School         150 pieces

iv. Kumasi Girls’ Senior High School 50 pieces

 

Again, documentary evidence ought to have been tendered to show that the beds were delivered to the aforementioned schools by the plaintiff on behalf of the defendants. For instance, tendering of Way Bills and receipts issued by the schools would have assisted the court to ascertain whether the 1st defendant was a party to the contract, as his name would have reflected on the said documents.

The plaintiff, however, tendered documentary evidence in Exhibit A, cheque with face value of GHC 7,000.00 and bearing the name of the 1st defendant as the payee. He alleged that the 1stdefendant handed the cheque to him as a guarantee for payment of the outstanding balance owed by the defendants – a claim the 1st defendant rejects. According to the 1st defendant, the cheque was forcibly taken away from him by the police when the plaintiff caused his arrest in relation to the claim. Be that as it may, the cheque which is to the credit of the 1st defendant does not in any way suggest that he was a party to the agreement. It could have been a different conclusion if the cheque was issued by the 1st defendant to the plaintiff for part payment of the outstanding debt.

 

From the foregoing, it is clear that the plaintiff has failed to discharge the legal and evidential burden on the allegation that the 1st defendant is a party to the contract. In view of this, the court will not lend credence to this allegation. Consequently, the 1stdefendant cannot be described as a contracting party. In the circumstance, can it be said that there a cause of action against the 1st defendant?

The question of whether a cause of action exists against a party depends on whether a factual situation exist which entitles another party to obtain from the court a remedy against the first mentioned party, as explained in the case of Ampratwum Manufacturing Co. Ltd. v Divestiture Implementation Committee [2009] SCGLR 629 at 298 by the Supreme Court per Baffoe-Bonnie JSC.

In the instant case, since the 1st defendant is not a party to the contract in contention, it follows that he cannot be held liable for breach of the same. I therefore conclude that the 1st defendant is not liable to the plaintiff’s claim.

 

Is the 2nd defendant liable?

When facts that can sustain the case of a party to a suit are admitted by the other party, trial of that case may become unnecessary provided that such admissions are unequivocal and voluntary. In that regard judgment may be entered on the basis of the admissions.

The defence may expressly admit a fact pleaded in a statement of claim or impliedly admit it by failing to traverse it. Also, if there is a default in filing an appearance or statement of defence, they constitute implied admission and judgment may be entered against the defendant. However, once there is a full trial the legal burden of proof is not dispensed with in spite of the implied admission by the defendant for failing to contest the matter. In the instant case, the plaintiff sued the defendants jointly and severally. In spite of the fact that the 2nd defendant failed or refused to participate in the trial, the plaintiff continued to bear the burden proof in respect of the claims against the 1st and 2nddefendants.

 

From the evidence, there is no doubt that the 2nd defendant entered into an oral agreement with the plaintiff for the latter to supply 500 pieces of beds to some schools at the unit price of GHC 135.00.

This was corroborated by the plaintiff’s witness (Stephen Sokpa) and the 1st defendant who witnessed the transaction. The plaintiff’s testimony that the 2nd defendant is in breach of contract is also not in doubt. The plaintiff has led incontrovertible evidence to establish that the 2nd defendant made part payment of GHC 5,000.00 of which he used GHC 2,500.00 for transportation of the beds leaving an outstanding balance of GHC 65,000.00 to be paid by the 2nd defendant. From the evidence on record, it is only the 2nd defendant who is indebted to the plaintiff.

Accordingly, I enter judgment in favour of the plaintiff against the 2nd defendant in the amount of GHC 65,000.00 plus interest at the commercial bank rate from December, 2009 till date of final payment.

 

Costs of GH¢8,000.00is awarded against the 2nd Defendant.

 

SGD. 

DR. RICHMOND OSEI-HWERE 

                                                                                                                                                                                       JUSTICE OF THE HIGH COURT