THIRD LEVEL COMPANY LIMITED vs. DOUGLAS YAW ANTWI & ANOR
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (COMMERCIAL DIVISION)
    KUMASI - A.D 2014
THIRD LEVEL COMPANY LIMITED
DOUGLAS YAW ANTWI & ANOR

DATE:  25TH NOVEMBER, 2014
SUIT NO:  RPC/67/14
JUDGES:  ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
LAWYERS:  EWURAA ESI OTCHERE BAAFI FOR ASANTE KROBEA FOR PLAINTIFF
PATRICK ASANTE NNURO FOR DEFENDANTS
JUDGMENT

This suit was commenced by the Plaintiff by a writ of summons and statement of claim filed on 02/12/2013, perhaps, one of the oldest cases pending before this court. Indeed, the Defendants amended their statement of defence thrice in the course of the trial and sought so many adjournments on various grounds. But for the attitude and conduct of the Defendant s towards this trial, the curtain would have been brought down much earlier!

 

These are the reliefs sought by the Plaintiff in its amended statement of claim filed on 02/02/2015:

a) Recovery of the sum of Ninety Thousand, Nine Hundred and One Ghana Cedis ( GH¢ 90, 901.42) being monies owed the Plaintiff which the 1st Defendant as the employee of the Plaintiff has failed to account for and which the 2nd Defendant has at all times been the Guarantor of the 1st Defendant with the Plaintiff.

b) Interest on the said amount from 1st October, 2013 at the prevailing bank rate till the time of final and full payment.

 

THE PLAINTIFF'S CASE

The Plaintiff described itself as a Limited Liability Company registered as a Guinness distributor at Ahwiaa, Kumasi, and the 1st Defendant as its employee, a salesman, to be specific. The Plaintiff alleged that due to declining sales, it agreed to sell products to its cherished customers on credit basis instead of the usual cash sales. As a rule, all salesmen were instructed to collect the total indebtedness of every customer before selling more products to them at any given time. At a point in time, it came to the attention of the Plaintiff's General Manager that the 1st Defendant had not accounted for a lot of the products that were given to him to sell and he was queried. The 1st Defendant is said to have admitted that customers who had purchased goods on credit had not paid for the same. He was therefore tasked to recover all outstanding sums before he would be allowed to sell more products; he then presented cheques from some customers which were dishonoured by the bank. Thereafter, the plaintiff alleged that its General Manager accompanied the 1st Defendant to the alleged defaulting customers but they indicated that they had paid for all their products to the hearing of the 1st Defendant. It is the Plaintiff's case that the 1st Defendant owes the company the sum of GH¢ 90, 901.42, and the 2nd Defendant who stood as his guarantor has been duly informed.

 

THE CASE OF THE 1ST DEFENDANT.

The 1st Defendant in his further amended statement of defence filed on 17/06/15 admitted paragraph (2) of the plaintiff's amended statement of claim which is to the effect that the 1st Defendant is an employee of the Plaintiff. However, he denied that the Plaintiff gave him an appointment letter and so there is no formal contract of employment between the parties. He alleged that the Plaintiff merely engaged him to assist in the sale of its products along the Effiduase/Asokore Road but was never paid a salary. He conceded that it is the company's mandatory policy that salesmen are to account for their sales on daily basis but stressed that on the instructions of the plaintiff, some goods were sold on credit. After assisting the plaintiff for over two years, the 1st Defendant asserted that the plaintiff compelled him to obtain a guarantor and insisted on the same when the alleged indebtedness started accruing. Somewhere along the line, the 2nd Defendant who had stood as a guarantor approached the Plaintiff's manager in the company of one Anna Dufie and allegedly intimated to him that she wanted to withdraw her guarantorship; he agreed and promised to delete her name from their records as being a guarantor. The 1st Defendant also denied that the Plaintiff's general manager went with him to demand payment from customers who allegedly said they had paid off their indebtedness as well as the Plaintiff's assertions in respect of the dishonoured cheques.

 

The 1st Defendant listed customers like Peace Bro, Beginning with Christ, Assor, Vera and Akua Bema as customers who have settled their indebtedness but have been added to the list of debtors; Aunty Pomaa he said, was never supplied with any product, yet, she is listed as a debtor.

 

Another defence put up by the 1st Defendant is that his vehicle loaded with products and empty bottles worth GH¢ 15,000.00 got damaged in an accident, he hired a towing truck to tow the vehicle to the Plaintiff's work place at his own expense, his product was stolen by a thief which he managed to arrest, yet all these losses have been added to his alleged indebtedness. He further averred that a cheque given to him by one Eric Mensah was presented to the Plaintiff but later the Plaintiff said the check got lost. The face value of the so called missing cheque has also been added to his indebtedness.

 

In all, the 1st Defendant asserted that no auditor has audited him to establish that he owes the Plaintiff to the tune of GH¢ 90,901.42, neither has he been served with a document from any auditor confirming his indebtedness. He indicated that the Plaintiff's claims against him are mere fabrications.

 

THE CASE OF THE 2ND DEFENDANT.

The 2nd Defendant did not deny that she stood as a guarantor for the 1st defendant, but contended that she did so some years after the latter's employment and without the benefit of independent legal advice. In respect of the credit sales, the 2nd Defendant averred that it was not stated on the face of the document she was made to fill out and that her guarantorship related to cash sales only. Later, she averred that in the company of one Anna Dufie, she went to the plaintiff's manager to withdraw her guarantorship, and after completing a form given to her by the said manager, which she was not given a copy, the plaintiff requested the 1st Defendant to present another guarantor since she had been discharged. It is her defence that the plaintiff has breached the guarantorship agreement and she is entitled to be discharged.

 

The Plaintiff in its amended Reply disputed the defence put up by the 1st and 2nd Defendants.

 

ISSUES FOR TRIAL

 

The court has to determine the following issues which were set down by the pre-trial judge:

 

Whether or not the 1st Defendant owes the amount claimed?

 

Whether or not the 1st Defendant was an employee of the Plaintiff Company?

 

Whether or not the 2nd Defendant stood as the guarantor for the 1st Defendant's employment?

 

After the numerous amendments filed by the parties, a forth issue as to whether or not the 2nd Defendant was ever discharged as a guarantor must be determined.

 

SUBMISSIONS OF COUNSEL FOR THE PLAINTIFF.

In respect of the first issue, counsel conceded that the onus of proof rests on the plaintiff. She relied on the exhibit M series tendered by the plaintiff's representative and argued that on the totality of these documents, the 1st Defendant owes the Plaintiff the sum of GH¢ 90, 901.42 arising from products sold to customers which he refused to account for and he admitted the same when the customers in issue were visited.

 

Further, counsel submitted that the 1st Defendant who told the court that the customers listed in the exhibit M series had settled their indebtedness failed to call any of them as a witness to corroborate his evidence and did not also call Auntie Pomaa listed in exhibit M whom denied selling products to as a witness. In the view of counsel for the plaintiff, the 1st Defendant assumed the onus of proof of these allegations but has failed to prove the same by not producing any document to that effect or getting a witness to corroborate his story. She cited and relied on Owusu v Tabiri (1987-88) 1 GLR 287; Ogbarmey-Tetteh v Ogbarmey-Tetteh (1993/94) GLR 353@396. On the first issue therefore, counsel concluded that the Plaintiff has been able to proof to the Court that the 1st Defendant owes it an amount of GH¢ 90, 901.42 as endorsed on the amended writ of summons.

 

Moving to the second issue, counsel referred the court to the plaintiff's exhibits C,D,E,F, G1, G2 and H. These are documents which relate to the 1st Defendant's application for employment, his appointment and acceptance letters, SSNIT statement of accounts as well as receipts from the Ghana Revenue Authority evidencing payment of taxes on his salaries. With specific reference to the 1st Defendant's denial of having signed exhibit D, counsel argued that the signatures which the 1st Defendant was made to sign on a blank sheet whilst in the witness box and tendered through him as exhibit S are the same as his signatures on exhibits D and C. Yet, he never pleaded nor mentioned in court that the Plaintiff forged his signature on these documents.

 

Another important submission made by counsel relates to the evidence given by the 1st Defendant on 21/06/2016 wherein he indicated that he was engaged by the plaintiff in August 2009 as a driver to assist in getting customers and was never a salaried worker but was however remitted by the Plaintiff. Counsel's argument on this point was that where there is a written document and oral evidence in respect of a transaction, the court would always prefer the documentary evidence to the oral evidence especially where the documentary evidence was found to be authentic and the oral evidence contradictory. She cited and relied on Duah v Yorkwa (1993-94) 1 GLR 217; and Tsifo v Dua VII ( 1959) GLR 63 to buttress her point.

 

Next, counsel addressed the court on the third issue which is the 2nd           Defendant's guarantorship.

These are the arguments on this point:

 

"Per exhibit H tendered by the representative of the Plaintiff company, the 2nd  Defendant undertook to bear all responsibilities for any act of omission or commission by the 1st Defendant which result in any loss to the company be it financial or otherwise. In her evidence, she informed the court that she has withdrawn her guarantorship with the Plaintiff on behalf of the 1st Defendant. She informed the court that she went to the Plaintiff's office to sign a form to signify the withdrawal with her sister called Anna Dufie. She further informed the court she requested for a copy of the said form but was not given a copy. The 1st Defendant under cross-examination said that the Plaintiff did not explain the contents of exhibit H to her before she executed the same. However, on the face of exhibit H, the 2nd Defendant filled out her portion without any assistance. This was confirmed per exhibit Q (signature and name of the 2nd Defendant which she wrote on a sheet in court) which was tendered through her by counsel for Plaintiff."

 

Commenting on the testimony of DW1 who described herself as a student, counsel submitted that even though the witness told the court that she accompanied the 2nd Defendant to the Plaintiff's office at Ahwiaa to sign a form to withdraw her guarantorship, she stated under cross-examination that she did not read what the 2nd Defendant was signing. She also did not hear the 2nd Defendant requesting for a copy of the form which signified that she had withdrawn her guarantorship for the 1st Defendant.

 

Based on the above inconsistencies in the testimonies of the 2nd Defendant and her DW1, as well as their demeanor which was noted by the court, i.e. answering questions in English before same were translated into Twi when they had created the impression that they could barely read, counsel argued that their credibility is questionable and should inure to the benefit of the Plaintiff. Ackom v Republic (1974) 2 GLR 419 cited.

 

Relying on sections 80(2) (a) and (b) of  N.R.C.D. 323 which deals with the credibility of witnesses, counsel further argued that DW1 is a biological sister of the 2nd Defendant and therefore seeks to exonerate her from any liability arising from exhibit H. As such, she is not a credible witness.

 

Concluding, counsel drew the court's attention to the legal effect of written agreements. She argued that where parties have formally recorded the whole of their agreement in writing, the written document is taken prima facie to be the whole contract and any extrinsic evidence will not be admitted to add to, vary or contradict the terms of the written agreement. Motor parts Trading Co. v Nunoo (1962) 2 GLR 195 referred to.

 

SUBMISSIONS BY COUNSEL FOR THE DEFENDANTS

In respect of issue 1, counsel based his arguments primarily on the burden of proof which rests on the Plaintiff in this case by relying on sections 10, 11(4) and 14 of the Evidence Act, 1975 NRCD 323. Cases such as Fosua Adu Poku v Adu-Poku-Mensah (2009) SCGLR 310 at 325; Yorkwa v Duah (1992-93) GBR 278 at 282 and Total Ghana Limited v Thompson (2011) SCGLR 458 which are authorities on proof in civil suits were also cited and relied on by counsel.

 

On this premise, counsel proceeded to analyze exhibit M tendered by the Plaintiff's representative as a list of customers who the 1st Defendant could not account for their monies paid to him. His argument was that exhibit M is an unsigned document, specifically, it does not bear the signature of any auditor of the Plaintiff company. In his view, it is the duty of the auditor of the Company to audit anyone who is alleged to have embezzled funds and come out with a credible audit report which is always signed and stamped. To that extent, he submitted that exhibit M cannot be relied on to implicate the Defendants in this case since that document could be generated from the computer by any person. He further submitted that exhibit M contains the names of thirty-one (31) customers who are within the environs of Kumasi , yet only one (1) of them was called to adduce evidence and his testimony was tainted with fabrications and lies.

 

Concluding, counsel argued that exhibit M does not present sufficient details of credit sales and it is highly impossible for the Plaintiff to establish a case against the Defendants based on the said document. In his opinion, the Plaintiff has woefully failed to prove its case against the Defendants.

 

I will at this point determine the issues which have been tried. The issue of the 1st Defendant's employment will be resolved first.

 

WHETHER OR NOT THE 1ST DEFENDANT WAS AN EMPLOYEE OF THE PLAINTIFF COMPANY?

Who is an employee? In the Dictionary of Law by L.B. Curzon (1998) (fifth edition) at page 133 , an employee is defined as follows:

 

"An individual who has entered into or works under a contract of employment"

 

Similarly, the Black's Law Dictionary (eighth edition) page 564 defines an employee as:

 

A person who works in the service of another person (the employer) under an express or implied contract of hire, under which the employer has the right to control the details of work performance."

 

Under the Interpretation section of the Labour Act 2003, Act 651, section 175, the word 'employee' is not specifically defined. However, an employer is defined therein as: " a person who employs a worker under a contract of employment." It continues to define a 'worker' as : "a person employed under a contract of employment whether on a continuous, part-time, temporary or casual basis."

 

All these definitions connote the rendering of services in an agreed manner by one person (the worker or employee) to another (the employer, be it a corporate body or an individual). In the case at hand, it is not in dispute that the Plaintiff bears the onus of proof of whether or not the 1st Defendant was its employee. The evidence so led at the trial by a representative of the 1st Defendant, its General Manager, was that the 1st Defendant was employed as a salesman and his employment with the Plaintiff company is documented. He then tendered in evidence the 1st Defendant's application form, letter of acceptance and appointment letter as exhibits 'C' ,'D' and 'E'.

 

Exhibit 'C' is a standard Application Form on the letterhead of the Plaintiff company. It contains the 1st Defendant’s bio data, mailing & residential address, educational background, the position applied for, references and sureties. The name of the applicant on the form is Antwi Douglas and the application form is also signed by the said applicant.

 

In exhibit 'E' dated 21/03/2009, the Managing Director (MD) of the Plaintiff company formally appointed Douglas Antwi as a Salesman effective 1st April 2009. This letter spells out the terms of his employment. Specifically, his responsibilities are" (i) represent the company and GGBL outside the company;(ii) Assisting Salesman for the selling of drinks to customers; (iii) Loading and off loading of drinks unto truck; (iv) assist both the empties and fulls manager in stock taking; (v) security and safety of stock and (vi) any other duties may be assigned from time to time. It is further indicated therein that Douglas Antwi's monthly gross salary is GH¢ 210.00.

 

Douglas Antwi accepted this appointment in a letter addressed to the General Manager of the Plaintiff Company and signed on 24/03/09. It reads:

 

LETTER OF ACCEPTANCE

With reference to your letter of approval of my appointment as "SALESMAN " of your company.

 

I wish to inform you of my acceptance of work and thus comply with the terms and conditions of service of the company.

 

I promise to bring out the best in me to the advantage of the Company.

 

Name& signature: Douglas Antwi. “

 

From exhibit B, Douglas Antwi was on probation for three months. Considering the effective date of his employment i.e. 01/04/2009, the probation period ended on 01/07/2009. He was then enrolled under the Social Security and National Insurance Trust ( SSNIT) scheme on 01/08/2009 (exhibit F).

 

Prior to the enactment of the National Pensions Act 2008, Act 766 and the Basic National Social Security Scheme Regulations, 2011 (L.I. 1989), registration of employees was mandatory under the Social Security Act 1991, P.N.D.C.L. 247 (now repealed). The plaintiff's exhibit 'F' therefore confirms the fact that the Company fulfilled its mandatory obligation of payment of social security contributions on behalf of its employees, including Douglas Antwi.

 

Under the Internal Revenue Act 2000 Act 592 (now repealed) and the Income Tax Act 2015, Act 896, section 4, income from employment are taxable. Employers are to deduct at source the income tax payable by its employees and pay the same to the Commissioner within a specified period. Exhibit G series are evidence of return of income tax for some months and taxpayer's receipts or to be specific, 'Pay As You Earn' (P.A.Y.E.) receipts. On the attached lists of employees whose income taxes were deducted at source and paid to the Ghana Revenue Authority is Douglas Antwi, indeed his name is the 4th on each list.

 

At this point, the evidential burden shifted onto the 1st Defendant to introduce evidence to contradict that of the Plaintiff. Surprisingly, he admitted on oath that he was employed by the Plaintiff company in August, 2009, but as a driver. I went back to the pleadings where it is also clear that the 1st Defendant admitted the Plaintiff's averment that he is its employee. I am therefore at a loss as to why after the pre-trial the issue under consideration was set down as an issue to be tried. This is because once a party admits an assertion or fact, it is no longer in issue. From the pleadings, I think that the issue ought to be whether or not the Plaintiff formally employed the 1st Defendant as a salesman? From what has transpired in this court, the evidence in support of both issues irrespective of the formulation will be the same.

 

I am in agreement with the submissions made by counsel for the plaintiff on the issue of the 1st Defendant's employment with the Plaintiff company because there is abundant evidence on record to support that fact. And, from the evidence, there is only one reasonable conclusion that can be reached by this court, that is, the 1st Defendant was not only the Plaintiff's employee within the ordinary meaning of the word as indicated in this judgment, but he was specifically employed as a salesman and I so find.

 

WHETHER OR NOT THE 1ST DEFENDANT OWES THE AMOUNT CLAIMED.

Once again, it is the duty of the Plaintiff to prove by the preponderance of the probabilities that the 1st Defendant owes the company the amount endorsed on its amended writ of summons. Whilst in the witness box, the Plaintiff's General Manager told the court that contrary to the company's policy that goods sold on credit are to be paid for before further supplies are made, the 1st Defendant continued to supply products to debtors. Continuing, the witness said the 1st Defendant has a route that he serves and in fact serves the same customers. He then tendered exhibit M series which is the list of the customer's on the 1st Defendant's route and which depicts their debit balances.

 

When this issue came to the Plaintiff's attention, the witness said management and both defendants went round and met some of the customers who confirmed that they had paid their monies to the 1st Defendant. The witness tendered three cheques which the 1st Defendant presented to the Plaintiff company as payments made by customers he had made supplies to, however, the said cheques were dishonoured upon presentation.(See exhibits J,K and L). Concluding, the witness indicated that the 1st Defendant's indebtedness which was originally GH¢ 101, 127.18 had reduced to GHS 90, 901.42 after the parties had visited the customers listed in exhibit M.

 

During cross-examination, counsel for the defendants sought to discredit exhibit M on the basis that the document was not subjected to any auditing as is required of a registered company. To this line of questioning, the Plaintiff's representative told the court that exhibit M emanated from the Plaintiff's audit department and it is the statement of accounts of customers showing detailed transactions the 1st Defendant made to them. Counsel further challenged exhibits J,K and L on the ground that they are not personal cheques of the 1st Defendant and cannot be used against him. In answer to these questions, the witness maintained that so long as the 1st Defendant presented those cheques to the Plaintiff company, they could be used against him.

 

When the 1st Defendant mounted the witness box, his version of the rival accounts was that as per the instructions of the Plaintiff company, he supplied drinks such as Guinness, Star and Gulder to customers on credit, went round after a week or two to collect payment and made further supplies to them. He challenged the Plaintiff's allegation of his indebted on three main grounds:

 

First, he mentioned customers like Kofi Boye Owusu, Sasu Pamela, Peace Bro, Odum Dorcas, Akua Bema and Beginning with Christ as some of the customers who have settled all their indebtedness to the Plaintiff Company, yet their names appear on exhibit M series. He denied pocketing monies he received from these customers. Again, he said one Eric Mensah paid for his products by cheque which he presented to the Plaintiff Company but that has also been added to his indebtedness.

 

However under cross-examination, the 1st Defendant said he could not furnish the court with proof that these customers had settled their indebtedness. How then did they settle their indebtedness to the Plaintiff?

 

Second, he told the court that during one of his trips to distribute drinks on the Adanwomase road, some people climbed onto the bucket of his truck and made away with some drinks. One of them was arrested and sent to the Mamponteng Police Station.

 

Third, he testified that his service truck was involved in an accident and the cost of damage was assessed at GH¢ 15,000.00 which the plaintiff has also added to his alleged indebtedness. He added that the plaintiff company has never audited him and he got to know of his indebtedness for the first time in this court.

 

In reaction to the 1st Defendant's evidence on the theft at Mamponteng, the plaintiff's representative in his further evidence to the court pointed out that when the case was reported to the Mamponteng Police, the 1st Defendant and the family of the culprit settled the case amicably and there was no report of any major loss. In respect of the cheque presented by Eric Mensah, the Plaintiff's representative explained that the cheque had so many paintings on it and so they gave it back to the 1st Defendant and instructed him to collect the money from the said customer, the 1st Defendant did exactly so and continued to trade with the man.

 

As regards the accident which the 1st Defendant talked about in his evidence, the Plaintiff's representative in his further evidence-in-chief said the 1st Defendant reported that the vehicle had fallen into a ditch; he went to the scene and had it towed to the company's premises; the 1st Defendant paid GH¢ 180.00 for the tow but the same was refunded to him the following day. According to him, there was no report of any damaged products as a result of that incident.

 

Again, whilst the 1st Defendant was being cross-examined by counsel for the Plaintiff, he failed to satisfactorily answer questions relating to an order of the court for the parties to visit the customers listed in exhibit M. series .Whereas the Plaintiff maintained that each customer was visited by the parties herein after which the 1st Defendant's indebtedness was reduced to GH¢ 90, 901.42, the 1st Defendant maintained that he abandoned the trip because the Plaintiff had engaged a camera man to follow them to capture the events without prior notice to him.

 

I have carefully analyzed the submissions made by both counsel in respect of the 1st defendant's alleged indebtedness details of which are contained in exhibit M series, as well as the entire evidence on record. The documents state the purchases and payments made by each of the customers listed therein and their outstanding balances. Did the defendants and management of the plaintiff company visit all these customers after which the 1st Defendant's indebtedness was reduced? The parties who visited these 'defaulting' customers did not sign any document to evidence the figure arrived at upon conclusion of the visits. So, it is the word of the Plaintiff against that of the 1st Defendant. The court will have to decide whose story is credible. In other words, between the Plaintiff's representative and the 1st Defendant, who is more credible? In terms of section 80 of NRCD 323, the 1st Defendant is a person not worthy of credit, not in the least! Why do I say so? He misrepresented to the court that he was never employed as a salesman when in fact all the documentary evidence tendered which he could not disproof pointed to the only irresistible conclusion that he was indeed appointed as a salesman of the Plaintiff company; he also said he never received any salary from the Plaintiff but there are documents in evidence pointing to the contrary. His own account that he prevented a cameraman from covering the rounds at which customers were questioned about their debit balances also raises suspicion. What did he stand to lose if indeed the said customers had in fact paid off their indebtedness to the Plaintiff company and are captured on camera? Why did the 1st Defendant fail to call any of these customers to support his defence that he has not embezzled the monies which they paid to him? It is reasonable to infer from the 1st Defendant's own conduct that his sole aim was to suppress credible evidence which would have aided this court! Between these rival accounts, and in

 

view  of  the  1st Defendant's  lack  of  credibility,  I  will  accept  the  evidence  of  the  Plaintiff's representative that the parties herein visited all the customers listed in exhibit 'M' who confirmed payments made to the 1st Defendant but he could not challenge the same as the truth.

 

Now, I turn to the lengthy cross-examination and submissions by counsel for the defendants in respect of auditors of the Plaintiff company who failed to conduct a proper audit of the 1st Defendant's dealings with the company. Sections 123 to 136 of the Companies Act, 1963, Act 179 provide for Accounts and Audit of Companies. Specifically, section 125 which deals with the preparation of Profit and Loss accounts (P&L) enjoins a company's auditor to compile a consolidated P & L account of the company for a stated period. Further, under section 133, the auditor is to come out with the true financial statement of the company which must be duly signed by a qualified auditor. Section 136 spells out the functions of the auditors. In addition to those statutory functions, subsection (7) requires that the auditors may:

 

"...under the terms of their contract with the company, expressly or impliedly undertake obligations to the company in relation to the detection of defalcations, and advice on accounting, costing, taxation, raising of finance and other matters."

 

The arguments advanced by counsel for the Defendants in respect of the role which the Plaintiff's auditors ought to have played in this case are out of place. Counsel never requested, nor stated that the said indebtedness was not captured in the plaintiff's financial statement for the relevant period. Going by the functions of auditors under the Act, each customer's debt will not reflect on the Company's P& L account as an individual item, because a Company's Financial Statement captures a consolidated P & L position. The 1st Defendant does not dispute that he made credit sales to the persons listed in exhibit M, except Auntie Pomaa. The plaintiff has established to the satisfaction of this court that the 1st Defendant supplied products to the said Auntie Pomaa on his usual route. He also does not dispute the fact that over a period he received monies from these customers, paid same to Plaintiff and made further supplies, no receipts were issued to the customers as per the evidence before me and the parties have all these years been comfortable with this kind of arrangement. The only problem now is that at a point the 1st failed to account to the Plaintiff for monies received from his usual customers. Indeed, exhibit 'M' series are records of transactions between the 1st Defendant and customers whom he served on his usual route. The 1st Defendant did not plead or introduce any cogent evidence to show that these documents were falsified by the Plaintiff. Even though exhibit M is not signed by the audit department of the Plaintiff company, the 1st Defendant was given the opportunity to confront the said customers when the parties herein went on a verification exercise. What did he do? He pounced on a cameraman who was engaged to cover these visits! The verification continued and the figure endorsed on the amended writ of summons was arrived at. He knows his customers and he ought to have called them as witnesses to confirm his accounts before this court, but he neglected to do so!

 

Having weighed the evidence on record, it is more probable, than not, that the 1st Defendant actually collected monies from the customers listed in exhibit M series without accounting for the same to the Plaintiff company. I find that the sum of GH¢ 90, 901. 42 which was arrived at, at the end of the verification tour involving the parties herein represents the amount siphoned or unaccounted for by the 1st Defendant. I further find that the 1st defendant's evidence on damaged products amounting to GH¢ 15,000.00 among others are afterthoughts geared towards reducing his indebtedness to the Plaintiff company- the same cannot stand. I conclude that the 1st Defendant is indebted to the Plaintiff company to the tune of GH¢ 90,901.42 being monies received from customers of the Plaintiff listed in exhibit 'M' series and which he failed to pay to the Plaintiff company as per his terms of employment.

 

ISSUE OF THE 2ND DEFENDANT'S GUARANTORSHIP

From the pleadings, the Plaintiff once again bears the onus of proof of this issue. The Plaintiff is therefore required to discharge the evidential burden by producing such evidence which will satisfy the court that it's version of the rival accounts is more probable than not. Two sides of the question of 2nd Defendant's guarantorship will have to be considered, namely: (i) whether or not the 2nd Defendant stood as the guarantor for the 1st Defendant's employment? and (ii) Whether or not the 2nd Defendant was ever discharged as a guarantor?

 

At the trial, the Plaintiff's representative testified that sometime after the employment of the 1st Defendant and when the company decided to do credit sales, each employee was required to produce a guarantor. According to the witness, he was in his office one day when the 2nd Defendant walked in to sign as a guarantor for the 1st Defendant; she was given a form, the witness read out the contents and gave the form to her, she also read it and the documentation were done. He denied that the 2nd Defendant came to him to withdraw her guarantorship.

 

With regards to the alleged withdrawal of the 2nd Defendant's guarantorship, this was what the witness said:

 

"I do not recall ever seeing 2nd Defendant coming to me to withdraw her guarantorship. The only statement she put across was when she was signing the document that she put a question to me that should in case she takes her hands off Douglas Antwi, are we going to accept it? I told her I am not a legal person but i know documents are there to be amended and not taken off. I told her whenever she is ready to take her hands off, she should notify the company through a letter and the letter is put on file. That was the last day we talked about guarantorship".

 

After denying the above piece of evidence in the course of cross-examination, the 2nd Defendant also mounted the witness box to put across her defence. A very important portion of her evidence was this:

 

The 1st Defendant was working with Third level Company Limited. He is no longer working with the plaintiff company. I was invited to the company when the 1st defendant was working with them, they gave me a form to fill. I was told it was a guarantors form. I was told I was filling the form in case the 1st Defendant is nowhere to be found, I will be contacted and if also there is something to be given to him and he could not be found, it will be given to me. I was invited to fill the form about 21/2 years after his employment. At the time I went and filled the forms, I was not married to the 1st Defendant. We had a misunderstanding and I decided to withdraw my guarantorship. I withdrew my guarantorship."

 

The 2nd Defendant went on to demonstrate to the court how she withdrew her guarantorship in these words:

 

After signing the guarantorship for the 1st Defendant, I went to the company again. I went with my sister Anna Dufie. When I went to the office I contacted the 1st Defendant. We had not married at that time. I told the 1st Defendant I wanted to withdraw my guarantorship and he suggested we should go to the manager. The 1st Defendant, my sister and I went to the manager and he asked why we had come to see him. The manager is Mr. Eric Senya. I explained to him I could no longer be a guarantor for personal reasons. He gave me a form which I filled. He did not give me a copy of the form. Mr. Senya told the 1st defendant that he is a witness to the withdrawal of my guarantorship and that he should find another guarantor."

 

It will be significant to delve into what constitutes a contract of guarantee and the obligations of the parties to that contract. What is a guarantee or guaranty ( guarantee)? In Black's Law Dictionary referred to, supra at page 724, a guaranty (guarantee) is defined as:

 

A promise to answer for the payment of some debt, or the performance of some duty, in case of failure of another who is liable in the first instance."

 

There are different kinds of guarantees. Examples are: (i) a contingent guarantee in which the guarantor will not be liable unless a specified event occurs; (ii) continuing guarantee- this governs a course of dealing for an indefinite time ; (iii) guarantee of payment- this guarantee is not conditioned on the creditor having first exhausted legal remedies against the principal debtor before suing the guarantor, once a demand is made on the principal and he refuses to honour his obligations the creditor can proceed against the guarantor; (iv) irrevocable guarantee- this is a guarantee which cannot be terminated without the other parties consent; revocable guarantee- this is a guarantee that the guarantor may terminate without any other party's consent.(See Black's law Dictionary at page 724).

 

At Common law, guarantees are required to be in writing, or evidenced in writing , pursuant to section 4 of the Statute of Frauds, 1677. Under our Contracts Act, 1960 Act 25, the need for writing is mandatory for such a contract to be properly constituted. Section 14 makes provision for contracts of guarantee as follows:

 

“Guarantees to be in writing

 

Sec 14

(1) An agreement made before or after the commencement of this Act, by which a person guarantees the due payment of a debt or the due performance of any other obligation by a third party, is void unless it is in writing and is signed by the guarantor or is entered into in a form recognised by customary law.

(3) For the purposes of this section and of sections 15 and 16, “guarantor” means a person who guarantees the due payment of a debt or the due performance of any other obligation by a third party."

 

In Elluah v Ankomah (1968) GLR 795, the parties entered into an oral agreement whereby a debt owed to the G.N.T.C. would be paid in exchange for an assignment. The court held that such an oral contract of guarantee is void. In holding (2), this was what the court said:

 

"The undertaking by the plaintiff to pay the debt of the defendant to G.N.T.C. in consideration of the assignment was a guarantee caught by section 14 (1) of the Contracts Act, 1960 (Act 25). Even if it were not so, it was a promise whereby the G.N.T.C. might obtain money from the plaintiff. As such it was caught by section 14 (2) of Act 25."

 

Like any contractual principles, the guarantee may be vitiated on grounds such as misrepresentation, undue influence, non est factum, illegality, a unilateral mistake as to the terms of the guarantee, or a common mistake. See Erlinger's Modern Banking Law, fourth edition, page 851.

 

In what circumstances can a guarantor be discharged? Generally, if the principal agrees to have the agreement varied or accepts a variation of the agreement without the consent of the guarantor, or where the contract is altered in a way which is not beneficial to the guarantor, the guarantor may be discharged. The rational of this principle is that the guarantor is to be responsible for the precise obligations which are guaranteed. For instance, if A guarantees a loan of XYZ amount for B, and the creditor enhances the facility for B after the drawdown without the consent of A, the latter will be discharged from liability because the guarantee he provided did not relate to the enhanced amount. In Credit Suisse v Borough Council of Allerdale (1995) 1 Lloyd's Rep. 315, the creditor and the principal debtor agreed on a variation of a loan facility by consolidating previous drawdown to provide for a common interest period for all drawdowns. The court held that the variation had the consequence of discharging the guarantor since it would not have been 'inevitably' beneficial to the guarantor.

 

Also, a guarantor may be released by the creditor's conduct towards the guarantor. For instance, where a creditor who is in possession of the guarantee materially alters it in a way that is capable of prejudicing the rights of the guarantor. See Erlinger's Modern banking Law at page 857. A creditor or a person in whose favour a guarantee was executed may also agree to release or discharge the guarantor upon the fulfillment of certain conditions acceptable to the parties or agreed by them.

 

The obligations of a guarantor under a contract of guarantee start from the day the contract or agreement is signed, and cannot relate to past events. Put differently, a guarantee cannot be for past consideration. In such a case, the guarantee will not be properly constituted. Astley Industrial Trust

 

Ltd. v Grimston Electric Tools (1965) 109 SJ (also quoted at page 848 of Erlinger's Modern Banking Law) is a clear case where the guarantee was not properly constituted. Here, the guarantee was stated to be in consideration of the creditor entering into a hiring agreement. However, the guarantee was executed four days after the hiring agreement was concluded.

 

In any dispute arising from a guarantee, the document must be construed by the court. Generally, guarantees are to be construed according to usual contractual principles, but cases of doubt and ambiguity are to be resolved in favour of the guarantor. It is always helpful to ascertain the true intentions of the parties to the agreement and to interpret the words used by them strictly.

 

I will at this juncture take a quick look at the 'Guarantor's Form' which the 2nd Defendant filled out in ink and signed same and evaluate it in terms of the principles discussed in the foregoing paragraphs. It reads:

 

I, Susana Serwaah Kyereh by this document undertakes to bear all responsibilities for any act of omission or commission by the applicant Douglas Antwi which result in loss to the company, be it financial or otherwise."

 

The words used are self-explanatory. Acts of omission ordinarily include any oversight, blunder, error, lapse, slip and the like. Acts of commission connote the actual doing of things which may result in expenses or create a liability to another. Both acts of omission and commission can have financial repercussions. It is these ramifications which the second defendant guaranteed.

 

From the wording of exhibit 'H', it is a continuing guarantee for as along as the 1st Defendant remained in the employment of the plaintiff and until all his obligations and/or liabilities towards the Plaintiff are fully satisfied.

 

Having observed the demeanor of the 2nd Defendant in court and in view of her level of education (post secondary) at the time she executed the guarantee, exhibit 'H', it cannot be said that she did not understand the contents, or that the Plaintiff's General Manager interpreted it to her in a different manner inconsistent with what the parties intended. I have no doubt at all in my mind that the 2nd Defendant signed exhibit 'H' and she fully understood her obligations as a guarantor. There is no evidence of illegality, fraud, misrepresentation and the like to vitiate this agreement on the face of it. All things being equal, she is to be bound by the guarantee she freely signed.

 

But, is she in fact bound by it given the circumstances of this case? Let me start from the 1st Defendant's application form, exhibit 'C'. On that document, he provided the Plaintiff with the names of the 2nd Defendant and one other person, Musah Albert, as his sureties; then he was formally employed on 01/04/2009. The Plaintiff did not prove to this court that any of the above mentioned sureties executed any document before the 1st Defendant officially commenced work in April, 2009. From the evidence on record, the 1st Defendant went about his duties or carried out his responsibilities as stated in exhibit E. The 2nd Defendant signed the 'Guarantor's Form' on 10/11/11, that is approximately two and a half years (21/2) after the 1st Defendant had commenced work. And, in the Plaintiff's General Manager's own words on oath, it became necessary for each salesman or employee to provide a guarantor when the company decided to sell products on credit, but he did not tell the court when the credit sales started. Was it immediately before the 21/2 years or after the 2nd Defendant had signed exhibit 'H'? I will now comment on exhibit 'M' series. Whereas the customers listed in exhibits 'M14', 'M17' to 'M32' made their purchases after November, 2011, the customers listed in exhibits 'M', 'M1' to 'M13' ; and 'M15' to 'M16' had various debit balances brought forward prior to the purchases they made on various dates between January and February, 2012. So, the balances which were carried forward was in respect of what period? The Plaintiff suppressed evidence on these very important details. It is highly probable that these debit balances were as a result of purchases or supplies made before 10/11/11 when the 2nd Defendant signed the 'Guarantor's Form'. This gives some credibility to the 2nd Defendant's evidence that she was made to sign exhibit 'H' when the 1st Defendant's debt was piling up, and the evidence of the 1st Defendant that he was compelled to bring a guarantor when the issue of his alleged indebtedness came up.

 

Obviously, the guarantee given by the 2nd Defendant does not relate to acts of "omission or commission" prior to 10/11/11. As I said earlier, the Plaintiff ought to have given actual details of the balances brought forward as these details are essential in determining the liability of the 2nd Defendant.

 

I must say that the 1st Defendant is bound to pay the full amount which he failed to account for to the plaintiff. The 2nd Defendant's obligation as a guarantor is secondary to that of the 1st Defendant. The Plaintiff arrived at the 1st Defendant's indebtedness on exhibit 'M' as a whole. Having identified so many loopholes in exhibit M series , in respect of balances brought forward where do I draw the line and say that the 1st Defendant owes the plaintiff XYZ amount and that the 2nd Defendant's liability is ABC amount? In the midst of these ambiguities resulting from the "balances brought forward" and which said uncertainties were brought about by the Plaintiff's own conduct, it will be detrimental to the 2nd Defendant if she is to be held liable for all the outstanding balances in exhibit 'M' series. This is in view of the high probability that most of these debts existed before she signed the guarantee from.

 

Taking into consideration the demeanour of the 2nd Defendant and her sole witness, Anna Dufie, who is also her biological sister, I find their account relating to how the Plaintiff's General Manager discharged the 2nd Defendant as a guarantor as an afterthought, or better still, a well rehearsed "choreography". Having weighed the evidence on this question on the balance of probabilities, i find that the 2nd Defendant was never discharged as a guarantor by the Plaintiff's General Manager.

 

However, the circumstances of this case provide just grounds for discharging the 2nd Defendant from liability under the guarantee she signed as I have already demonstrated, and she is accordingly discharged.

 

Judgment is entered in favour of the plaintiff against the 1st Defendant in the sum of GH¢ 90, 901.42. Certainly, the Plaintiff is entitled to interest on this amount because if the Plaintiff had invested the money elsewhere, the company would have made lots of profits. The Plaintiff has asked for interest from 01/10/2013 without telling the court the basis for that date. In the circumstance, I award interest at the prevailing bank rate from the date of commencement of this action which was 02/12/2013 to the date of delivery of judgment; and post judgment interest up to the date of final payment. For the avoidance of doubt, the Bank of Ghana 91 days Treasury Bills Rate is to be used as the prevailing bank rate.

 

This case has travelled far, it was characterized by numerous adjournments and amendments at the instance of the Defendants. The wheels of justice have finally come to a halt! I have considered the provisions of Order 74 of C.I. 47 on the award of cost and I award cost of GH¢ 10,000.00 in favour of the Plaintiff against the 1st Defendant.

 

 

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