i. Introduction

[1] The Plaintiff Joseph Gyeni commenced the instant action against the Defendant BBS Logistics Limited on April 14, 2016. The Defendant filed a statement of defence on June 7, 2016 after entering appearance and substantially denied all the claims of the Plaintiff. After the filing of the statement of defence, the Plaintiff moved the Court for Summary Judgment prior to the commencement of trial but the application was denied by the Court per its ruling dated November 9, 2016. The Writ of Summons and the Statement of Claim was amended on December 1, 2016 pursuant to the leave of the Court. The Plaintiff per the Amended Statement of Claim and the Writ of Summons asserted claims of breach of contract and repayment money for goods supplied against the Defendant and seeks damages and legal fees.

[2] As stated above, per the Amended Statement of Claim the Plaintiff is claiming against the Defendant Company the following judicial reliefs:-

1. An order directed at the Defendant to pay Plaintiff an amount of Seventy-Six Thousand, Five Hundred and Twenty Nine Ghana Cedis and Ninety Eight Pesewas (GH¢76,529.89) being the cost involved in supplying spare parts to Defendant to service its vehicles.

2. Interest at the commercial bank rate on the GH¢76,529.98) being the cost involved in supplying spare parts to Defendant to service its vehicles.

3. General damages for breach of contract.

4. Costs including of litigation and solicitors fees.

[3] A 21 paragraph Statement of Claim accompanied the writ of summons. The Defendant filed a statement of defence to substantially deny all the allegations and claims of the Plaintiff. It was averred in paragraphs 3, 4, 5, 6, 7, 9. 10 and 11 of the Statement of Defence in particular that:

3. “The Defendant denies paragraph 4 of the Statement of Claim and will say that as a matter of policy and for the purpose of accountability and for auditing purposes any business it outsource must be by a specific laid down procedure which includes being given a written notice that an agreement has been awarded.

4. In further denial that Defendant will say that every contract it gives out is governed by a written agreement that is preceded by the Managing Directors express approval for the work to be carried out.

5. Per the Company’s laid down procedure a specific request is made to the Managing Director of the Company and if it meets the required specifications then the Managing Director approves for a contract to be entered into with the person and or company for the work to be done.

6. The Defendant is therefore surprised that the Plaintiff purportedly procured contracts from the Defendant outside its stated regulations and to the magnitude of the sum being claimed.

7. The Defendant denies paragraph 5 of the Statement of Claim and will say that per its stated procedure it does not have any record of the Managing Director approving or entering into any agreement with the Plaintiff be it written or unwritten.

9. The Defendant shall further state that it denies ever seeing an invoice from the Plaintiff with the face value of the amount being claimed on it consequent on an agreement it entered into between the Plaintiff and itself.

10. The Defendant admits paragraph 8 and 9 of the Statement of Claim and shall add that it has at the time of writing this defence not seen any approval for the works purportedly carried out by the Plaintiff on its behalf.

11. The Defendant in answer to paragraph 12 shall state that normally the Plaintiff should have made reference to the agreement mandating works done but it has not been able to refer to refer to such an agreement if it existed in its claim against the Defendant”.

ii. The Issues

[4] At the close of the pleadings, the Plaintiff filed an application for directions and formulated about four main issues for determination by the Court. The issues were as follows:-

i. Whether or not the parties entered into a valid contract sometime in April 2015 whereby Plaintiff was required to supply spare parts to Defendant to repair its vehicles and also repaired the hydraulic system of Defendant’s truck.

ii. Whether or not Plaintiff preformed his part of the contract in (a) above.

iii. Whether or not all contracts entered into by Defendant must be in writing.

iv. Whether or not Plaintiff was obliged to know the internal arrangements of Defendant before entering into a contract with it.

v. Any other issue(s) arising out of the pleadings.

iii. Brief facts of the case:

[5] According to the Plaintiff he had been a regular supplier of spare parts to the Defendant for the its vehicles and had supplied to the Defendant on at least two occasions prior to the one which is the subject matter of the present dispute. He said the previous contracts with the Plaintiff were not in writing. According to the Plaintiff sometime in April 2015 he had a call from an officer of the Defendant Company that they had some vehicles which needed to be repaired. It is the case of the Plaintiff that a meeting was scheduled for him to meet the Managing Director of the Company to discuss the supply of the spare parts for those vehicles as well as repair the hydraulic systems of the vehicles. The Plaintiff said the vehicles were not new and they needed to be put in use.

[6] The Plaintiff contends that he met the Managing Director and he was taken to the site of the vehicles and they were assessed and photographs were taken. According to the Plaintiff the cost involved in supplying the spare parts and repairing the hydraulic systems were assessed as Seventy-Six Thousand, Five Hundred and Twenty Nine Ghana Cedis and Ninety Eight Pesewas (GH₵76,529.98). The Plaintiff says he had someone fix the hydraulic systems on twenty nine (29) of the vehicles and also supplied the necessary parts for all the thirty one (31) vehicles. The Plaintiff issued the writ because according to him the Defendant failed to pay for the spare parts supplied and work done despite issuing out an invoice to the Defendant.

[7] The Defendant denied the Plaintiff’s claim on the grounds that as a matter of policy and for accounting and auditing purposes and for good business management it has a policy which is that any business it outsources must be a written notice that an agreement has been awarded. The Defendant further argued that per the Company policy every contract it gave out was governed by a written agreement acknowledged and signed by the Managing Director. In this case the Defendant contends that the Defendant could not trace any record of the Managing Director approving or entering into any agreement with the Plaintiff and therefore it refused to pay the invoice submitted by the Plaintiff. The Defendant therefore prayed the Court to dismiss the suit.

iv. The Court’s Evaluation & Analysis of the Evidence: I proceed to determine the issues set down- Issues 1 & 2

[8] Giving evidence on oath in support of the claim, the Plaintiff testified per the adopted witness statement that sometime in April, 2015 he had a call from one Mr. Andrew Darko who was the then Fleet and Logistics Manager of the Defendant Company who informed him that the Defendant Company has some vehicles which needed to be repaired . According to the Plaintiff he was informed that the manager of the Defendant Company “one Mr. Alvin would like to meet me to discuss the supply of spare parts for those vehicles as well as to repair the hydraulic system of the vehicles. The vehicles were not new and therefore needed to be put in use.” He further testified that “I went with one Mr. Frederick Okyere to meet Mr. Andrews and Alvin in their office at Ayi Mensah. We were taken to inspect the vehicles which were thirty one (31) in number made up of TGA, TGS & IVECO TRUCKS.”

[9] Mr. Gyeni further testified that there was a cost assessment of the spare parts and the hydraulic parts. He said the cost was GH₵76,529.98. According to Mr. Gyeni both Andrews and Alvin agreed to the cost and asked him to proceed with the work. According to him he employed a mechanic to fix the hydraulic systems on 29 of the vehicles and also supplied the necessary spare parts for all the 31 vehicles. The further testimony of the Plaintiff was that after all the works was completed, he presented an invoice for the cost of supplying the spare parts and the cost of repairing the hydraulic systems of the vehicles all being GH₵76,529.98 to Andrews. Mr. Gyeni further said “Andrews then told me to add an amount of Six Thousand, Two Hundred Ghana Cedis (GH₵6,200) being the charge of a mechanic employed by Defendant to fix the spare parts supplied into the invoice making a total of amount of Eighty Two Thousand, Seven Hundred and Twenty Nine Ghana Cedis and Ninety Eight Pesewas (GH₵82,729.98)”. According to him “the understanding was that when the GH₵82,729.98 was paid to me, then I will intend pay their mechanic instead of him also raising another invoice”

[10] The Plaintiff further testified that the “Defendant normally pays me for supplies or deliveries of spare parts within a month or two but this time they did not do that, that is making good its indebtedness to me despite repeated demands on them to do so”. He said he consulted a lawyer on Defendant’s failure to pay the debt. He said the lawyer then advised him to prepare a new invoice “which should contain only the amount owed me”. Mr. Gyeni said he re-issued to Defendant a new invoice in the amount of GH₵76,529.98 and submitted it to “the then Fleet and Logistics Manager, one Mr. Selasi who took custody of the invoice in the presence of Mr. Andrews Darko but refused to acknowledge receipt of it by appending his signature to the invoice”.

[11] Mr. Gyeni told the Court that his lawyers wrote to the Defendant to demand payment but they still failed to comply. He told the Court that the “Defendant did not reply to my lawyer’s letter because my lawyer never got a reply from Defendant. Defendant too did not pay the money. We however managed to obtain a copy of the reply which was supposed to have been delivered to my lawyer. The reply of Defendant is dated the 21st day of January, 2016 in which Defendant did not specifically deny the performance of the contract by me but rather said its difficulty has been that agreements involving such sums of money have to be commenced with the requisite approval by policy”.

[12] The Plaintiff tendered in support of his evidence, the following exhibits:

i) Exhibit A – A Ghana Revenue Authority Tax Credit Certificate from BBS Logistics Ltd to Josgy Eni Enterprise date 14/01/15. According to the Plaintiff is a payment from a previous contract with the Defendant which was not written;

ii) Exhibit B, B1, B2 and B3 – Photographs of some of the vehicles inspected;

iii) Exhibits C & C1 – Photocopies of the hydraulic systems repaired by the Plaintiff’s hired mechanic;

iv) Exhibits D – A photocopy of the Invoice of GH₵82,729.98 sent to one Andrews by the Plaintiff;

v) Exhibit E – A photocopy of the revised invoice in the amount of GH₵76,529.98 submitted to Mr. Selassi in the presence of Mr. Andrews Darko

vi) Exhibit F – A photocopy of the Plaintiff’s lawyer’s letter to the Defendant dated October 16, 2015;

vii)Exhibit G – A letter dated January 21, 2016 from the Defendant Company signed by Counsel for the Defendant, Charles Andoh.

Frederick Okyere

[13] The Plaintiff called Frederick Okyere as a witness. He testified that he is an employee of the Plaintiff Enterprise. He filed a witness statement which was adopted as his evidence in chief. The pith and substance of Mr. Okyere’s evidence was the same as the Plaintiff. In effect he corroborated the evidence of the Plaintiff. He also said that “the spare parts supplied to the Defendant are still being used by Defendant and no complaint has been made to us concerning any defects in the spare parts supplied to the Defendant whilst our business interest is having difficult time since all our money was used in fixing Defendant’s vehicles”

[14] Mr. Okyere further testified that “it is not true that all contracts entered into with Defendant are in writing as Defendant is now seeking to suggest. The first two contracts between Defendant and us were not in writing. Even after the Defendant refused to pay us the money, it asked us to work on another set of vehicles but we declined”. He also said “the Defendant did not show us any laid down procedure which states that specific request are sent to the Managing Director for approval. We are also not employees of Defendant to know the existence of such a procedure”.

Seth Twum

[15] The Plaintiff next called Mr. Seth Twum who said he is a Mechanic by profession. According to him the Defendant Company first contacted “Man Ghana Ltd to assess the imported trucks or vehicles and to determine the parts that would be needed to fix the trucks or vehicles. Man Ghana Ltd assessed the vehicles but Defendant said the bill was too high and also that Defendant needed the work on the vehicles done quickly which Man Ghana Ltd was not ready to do”. He further testified that “I was then asked by Mr. Alvin, Andrews and Henry to also assess the trucks or vehicles which I did and gave what parts that would be needed to fix the trucks to Andrews. Some of the items needed included oil filters, fuel, filters, air cleaners, engine oil etc”.

[16] According to Mr. Twum “I was then informed by Andrews that the Defendant has somebody who would supply the parts and other items needed to fix the vehicles or trucks”. According to Mr. Twum the “Plaintiff provided the parts and other materials needed to fix the trucks. The vehicles were duly repaired and are still being used by Defendant. After the work was completed, Defendant has refused to pay Plaintiff and me. Defendant kept promising me but nothing good came out of the promises.”

Mahamudu Adamu:

[17] The next witness called by the Plaintiff was Mahamudu Adamu who is also a Mechanic. He testified that he worked on the vehicles which are the centerpiece of the litigation. He said he repaired the hydraulic systems of the vehicles. He told the Court that he knows the parties in this case. According to him the Plaintiff informed him of the contract by the Defendant Company to repair the hydraulic systems of some vehicles belonging to Defendant Company. He said he was taken to Ayi Mensah where the vehicles were parked by the Plaintiff and Mr. Okyere. He confirmed that the vehicles were 31 in number and were made up of TGA, TGS & IVECO TRACKS. He said he tested all the 31 vehicles but realized that 29 vehicles out of 31 had problems with their hydraulic systems and were to be fixed.

[18] His further testimony was that “after bargaining with Plaintiff, a price of One Hundred and Fifty Ghana Cedis (GH¢150, 00) was agreed as my workmanship for each of the 29 vehicles totaling (Gh¢4,350.00) Plaintiff paid half of the money and when we finished all the 29 vehicles the other half was paid to me. Plaintiff provided the necessary parts for me to do the work. He confirmed the photographs in Exhibit “C” to be some of vehicles he worked on.

[19] I note that Counsel for the Defendant cross-examined the Plaintiff and his witnesses with some amount of force but they stood by their testimonies. In particular, I note that under cross examination by the Defendant’s counsel, Mr. Gyeni stood by his testimony that he took the hydraulic expert to the yard of the Defendant’s Company and he together with the Company’s Mechanic inspected the vehicles and he was told the faulty parts to be supplied. He said he supplied the said parts. He also said at the time of the supply he did not raise any invoice but took record of the quantity of the parts to be supplied and did so accordingly.

[20] In further cross-examination, this is what transpired when the Plaintiff was cross-examined by Mr. Andoh, Counsel for the Defendant as captured in the proceedings of Friday, April 13, 2018.

“Q: Did Andrew give you a written contract for the goods you supplied?

A: No my Lord. We have supplied two different consignments to the Defendants Company without a written contract.

Q: When did you supply the goods to the Defendant?

A: 2015.

Q: Did you attach an invoice to the goods you supplied?

A: Yes my Lord. After the goods were supplied and the Defendant Company had taken delivery of same an invoice was submitted to them.

Q: I am suggesting it to you that you never gave the Defendant an invoice after you supplied the goods.

A: I gave the Defendant Company an invoice.

Q: You gave the Company the invoice before the work was done, is that what you are saying?

A: The work on the vehicles were done before the invoice was given to the Defendant Company…

Q: This purported document Exhibit E who signed for it on behalf of the Defendant

A: No one signed Exhibit E on behalf of the Company. When we went to the Defendant Company at that time both Mr. Alvin and Mr. Andrew had been moved to a different position. I met one Mr. Selasi who was at that time occupying the position and he said he knows nothing about the contract ad so he cannot append his signature so he will submit the documents to the authorities and that we will hear from them later on.

Q: There was no contract awarded to you that is why no one was willing to sign that document for you.

A: We have had some engagements with the Defendant Company previously by way of supplying them with spare parts and the Company had paid us without any written contract document.

Q: I am suggesting to you that there was no contract awarded to you the Defendant but there was a collusion between you and Andrew for an invoice to be brought for monies to be paid.

A: There was no collusion between myself and Mr. Andrews. Defendant Company requested the supply of spare parts and it was based on these goods that the Defendant Company was to pay us.”

[21] In my respectful opinion the essence of cross-examination is to provide an opportunity for the cross-examiner to impeach the credibility of a witness where there are sufficient grounds to do so, such as discredited evidence of previous testimony or where there is an available documentary or other evidence to impeach the qualification, experience, expertise or position a witness has ascribed to himself or herself while testifying. In this case, respectfully, I am of the view that Counsel for the Defendant even though attempted to do so, failed to impeach the testimony of the Plaintiff’s witnesses on the main aspects of their testimonies. After his cross-examination of Mr. Gyeni, on the allegation of collusion between the Plaintiff and some officers of the Defendant Company for instance, in my view he failed to dismantle the figurative wall erected by Mr. Gyeni’s testimony in any way shape or form. The cross-examination was Mr. Andoh’s opportunity to dismantle the wall brick by brick but at the end there was no rubble because the wall remained intact.

[22] Now, how then did the Defendant contest Plaintiff’s claim and to what extent did

Defendant establish on the balance of probabilities that the Plaintiff did no work for the Defendant because it had no contract with the Defendant but colluded with some officers of the Defendant? The Defendant’s witness who testified was Mr. Isaac Amoah Sagoe. He said he works as the Finance Manager of the Defendant Company. His testimony to the Court was that “BBS has a policy where it gives out work to prospective clients after receiving express instructions on the works from its CEO”. He also said as part of its operations any work it gives out has laid down procedure it follows for auditing and accountability purposes. To that extent he said that “there must be express approval from the Group CEO before any contract can be given out to a third party”.

[23] Speaking specifically to the case at bar, Mr. Amoah Sagoe said “the Plaintiff has submitted an unsigned invoice for spare parts supply and works done on truck belonging to BBS totaling Seventy Six Thousand Nine Hundred and Twenty Nine Ghana Cedis and Ninety Pesewas (Gh¢ 76,929.90). However the said approval for the purported works have not been sighted per the Company’s policy and the company could not per its processes affirm that the said works were done and justifying payments was not possible”.

[24] He said the Company has looked through its books and cannot establish any approval leading to the said contract being awarded and as such there is just an unsigned invoice demanding payment. He also testified that “further there are multiple invoices bearing the same dates with varying amounts that have been presented for payment for the same works that were purportedly done for the company. One of the invoices dated 24^th April 2015 in the name of Josgyeni Enterprise does not have the signature of any officer of the company receiving the said invoice”.

[25] Mr. Amoah Sagoe further testified that “the Defendant Company has a lot of trucks at its yard at Oyarifa. All the said trucks were brought into the country in working condition. As is usual with the repair of trucks, a service Order card would have been raised detailing the particular works done on the said truck and a Job Completion Form would have been signed after completion of the works”. Mr. Amoah Sagoe said not having sighted any such documentation regarding any work done the Defendant cannot justify the payment of the money per the Plaintiff’s invoices presented.

[26] The following evidence crucial and relevant to the issue under discussion was elicited during the cross-examination of the Defendant’s witness, Mr. Amoah Sagoe on July 23, 2018.

“Q: Now, you were not in employment of the Defendant Company in 2015. Am I right?

A: Yes, my Lord.

Q: Are you aware that the Plaintiff and the Defendant have been doing business prior to your employment?

A: Yes, I am aware. I am aware per the records I have at the office.

Q: So, you will agree with me that this is about the third business that Plaintiff and Defendant have done?

A: I am aware based on the records that they have done some work but as to the number, as you said the third time, I have no idea.

Q: I am putting it to you that this is the third time the parties have done business together.

A: Not that I know of.

Q: Because you were not in employment at the time of this contract which has brought us to Court was entered into by the parties, you would not be able to speak to it.

A: I can speak to it, there was an invoice submitted which is on record that there were some claim for the invoice and that is how I got to know about the issue.

Q: But you will not be able to tell the Court how the contract was entered into by the parties, you only saw the invoice because you were not there.

A: I will be able to talk about it to the Court. The reason being that, in the processes of getting the third party to do work for the Defendant and one of them is the contract you have mentioned and there was no such contract as you mentioned between the two parties and then also, in our processes before a third party is called to do a job or work, there is what we have in place as ‘work order’ which need to be requested and approved by the authorised person and after the job is completed, there is also a document that we have termed ‘job completion/acceptance of work done’. These two documents are attached to your invoice to the CEO of the company to approve or endorse. And thereafter, a payment is authorised to be made. In this case, it was invoice that was issued and it was not signed by any of our officers.

Q: Do you know one Mr. Andrews Darko?

A: Yes, I do.

Q: Did you meet him at the work place when you were employed?

A: Yes, I did.

Q: Do you know the position he was holding in the company in 2015?

A: Yes.

Q: What was his position in 2015?

A: He was an Assistant General Manager.

Q: I am putting it to you that Andrews Darko was the Fleet and Logistics Manager and not Assistant General Manager as you are claiming.

A: If you say so.

Q: You do not know because you were not there in April 2015.

A: Yes, I was not there in April 2015 but when I was employed, I was reporting to him as an Assistant General Manager.

Q: Do you also know a certain gentleman called Mr. Alvin?

A: I heard of him but I did not meet him.

Q: But you would have known from the records that he was the Manager of the Defendant Company.

A: I knew that he was the General Manager and Andrews was the Assistant General Manager that is what I came to know.

Q: So, you will agree with me that you would not know how they were operating the Defendant Company/Business at that time in April, 2015.

A: I will know even though I was not an employee…..

Q: So, when in April 2015 Andrews and Alvin contracted the Plaintiff to supply spare parts for the Defendant Company’s vehicles, you will not be in the position to know about it.

A: I will know based on the records.

Q: Now, you had earlier on agreed that Plaintiff and Defendant have done business before, not so?

A: It is.

Q: Payments were made for those contracts.

A: I remember you mentioned the number of work done which I am not able to tell because I do not have the records but per the invoice I have, they have done some work.

Q: Now, this earlier contract for which Defendant paid Plaintiff were never in writing. I am putting that to you.

A: Once it was not on record, I would not know.

Q: Yet, the Defendant Company paid Plaintiff for those previous works when the contracts were not written, they were verbal contracts. I am putting that to you.

A: I am not aware of such payments.

Q: Now, you will agree with me that there is something we call Withholding Tax.

A: I agree.

Q: That, you will only withhold tax when you have paid somebody something?

A: Yes.

Q: I am suggesting to you that Defendant Company paid Plaintiff some money and the GRA issued a withholding tax to that effect.

A: Yes, once there was payment and there was withholding taxes, GRA will definitely issue a certificate.

Q: You have seen Exhibit “A” which is GRA Tax Credit Certificate.

A: Yes, I have seen it.

Q: It is in respect of work that was done by Plaintiff for which Defendant paid which resulted in Exhibit “A”. I put that to you.

A: Yes but it does not give me the details of the work because the company does a lot of things not only the supply of spare parts.

Q: I am putting it to you that this Exhibit “A” contract was never in writing, it was not put on paper between Plaintiff and the Defendant.

A: Yes, once there was no records to verify, I cannot speak to it.

Q: I am putting it to you further that all contracts that Defendant Company entered into with Plaintiff were never in writing.

A: I believe I have said that once there was no written document, I cannot speak to it”.

[27] That sums up the evidence of the Defendant’s representative Mr. Amoah Sagoe in defence of the Plaintiffs’ case. Now given the fact that Defendant’s witness admits that the Company has dealt with the Plaintiff in the past as part of its operations but could not say whether the past dealing was based on a written agreement which logically inferred, meant that it is not out of place for the Plaintiff to say the instant agreement was verbal, it would have served a better purpose for the case of the Defendant had a witness been called to eliminate from the mind of the Court that possibility through the production of relevant admissible evidence, but that was not done.

[28] Throughout the trial, Defendant did not find it necessary to call at least one person with the requisite knowledge of how the Company operates in regards to visitors who enter the yard for instance. The Court notes that on April 13, 2018 whilst cross-examining the Plaintiff Mr. Andoh insinuated that if the Plaintiff indeed supplied the spare-parts and went to the Company’s yard the first person who would have seen him would have been the security guard who should have taken inventory of the goods and not Mr. Andrew and Alvin, the people the Plaintiff testified he called when he got into the yard. The problem with Counsel’s reasoning to my mind is that the Defendant did not provide any evidence or policy of the Company which speaks to how Security guards must receive visitors and in particular those delivering goods to the Court. Is there a log book for instance that ought to be signed by a visitor to the Company yard? If so why was a copy not tendered at trial? The Defendant provided no evidence to support the assertions made by both the Defendant’s witness and Counsel.

[29] To my mind, this omission is fatal and it created a vacuum on the quality of evidence Defendant needed to adduce in defence of the Plaintiff’s claim. In my view therefore, the failure by the Defendant to call any such witness did not assist the Defendant in its defence. See OWUSU V. TABIRI [1987-88] 1 GLR 287. Given the nature of the defence set up by the Defendant, it had a duty to adduce evidence to prove that the Plaintiff’s claim is against the Company’s policy and procedure for operation. Also, I am of the respectful view that the Defendant’s position is simplistic because whilst it says there is no agreement signed and no approval given for the contract, it does not deny in the strict sense that the Plaintiff and the witnesses called did some work for the Defendant Company. It is startling for the Defendant to hide behind the fact that because there was no written agreement there was no work done in the face of the detailed evidence of how the spare parts were supplied and the repairs of the hydraulic systems were undertaken.

[30] In the written submission to the Court, the Defendant Counsel further seriously touted the position of the witness that there is no record of agreement signed and there was no invoice properly before the Defendant to enable it pay the Plaintiff. Counsel submitted that there was no job card detailing works done on the said trucks be it hydraulics section or the repairing of the trucks. According to Counsel the amount being claimed has no basis and therefore it was not surprising that the Defendant officials did not pay for same. Counsel submitted that based on Mr. Amoah Sagoe’s testimony “any contract awarded ought to have a document initiating same before we arrived at an invoice. In this case there is no executed invoice for the GH¢76,000.00 being claimed by the Plaintiff”.

[31] But what is the so-called “policy” and procedure of operation including the use of job card and “a document initiating” agreement before any contract is signed? Even though the Defendant pleaded that it has such a policy which the Plaintiff’s agreement did not comply with and both the witness called at trial and Counsel have repeatedly mentioned same the Court was left in quandary as to what it is all about. A copy of the policy was not tendered as evidence at trial. Also, no acceptable evidence was led to confirm how the Company operates when it comes to third party contractors etc. I therefore have no idea what this so-called policy is about.

[32] In any case, the general rule is that where a party in a civil suit raises an issue which is essential to the success of his claim, he assumes the onus of proof, whether it is the Plaintiff who asserts a fact or the Defendant. Discharging this burden requires that a party goes beyond merely repeating the averments in his pleadings on oath and produce evidence of other facts and circumstances from which the Court can ascertain that what he claims is true. The old case of MAJOLAGBE v. LARBI [1959] GLR 190 @ 192 has long shown the path to follow and laid in pithy terms what a party in an action such as the one at bar must prove on the preponderance of probabilities in order to secure a favourable verdict in his favour. The Court of Appeal case of FRANCE v GOLIGHTLY & ANOR [1991] 1 GLR 74, CA (holding 3) where it was held “where a fact was capable of positive proof it was wrong to rely on assumptions” undermines the Defendant’s contention which is the centerpiece of its defence to the claim.

[33] After my examination of the evidence adduced at the close of the Plaintiff’s case, and taking into consideration the fact that the Defendant’s defence was mainly bald denials without any cogent evidence to rebut the Plaintiff’s main claim, it is clear that the Plaintiff must succeed. I find as a fact that the Plaintiff was invited to inspect the trucks at the yard of the Defendant Company and after the assessment of the trucks and after negotiation, the Plaintiff was authorized to supply the spare parts needed and also repair the hydraulic systems of some of the trucks. I also find as a fact that the Plaintiff carried out the task assigned to him. Even though there was no formal written contract between the parties to crystalize the agreement between the parties, it is my holding that the parties had a verbal non-written agreement. To that extent, I also find as a fact that there was a contractual nexus between the Plaintiff and the Defendant. I am satisfied based on the evidence that the nature of the legal relations between the Plaintiff and Defendant was contractual and therefore their rights are also sustainable under the law of contract.

[34] As stated in her work, the learned author of “The Law of Contract in Ghana [1]” Christina Dowuona – Hammond stated on ‘Ascertaining the Fact of Agreement’ at page 4 paragraph 1.3 as follows:

“The concept of agreement is the basis or essence of every contract. A contract is essentially the outward manifestation of agreement between the parties with regard to a common objective. This manifestation of agreement may be made wholly or partly in writing, orally, by conduct or by a combination of all three. Thus one of the first inquiries in dealing with any contractual dispute is to determine whether or not there is an agreement between the parties at all”

[35] I have come to no other conclusion than that, the Plaintiff’s testimony through its witnesses is credible and sufficiently discharges the onus on the Plaintiff based on the prescribed statutory standard and established judicial authorities. The summary of my findings is that Plaintiffs witnesses’ testimony on the issue has not been contradicted, impeached, nor controverted by the Defendant at the close of cross-examination. In my respectful opinion, one of the most important piece of puzzle in this litigation is that the Defendant despite the strenuous effort to deny the instant agreement has not denied that it has had previous agreement/dealing with the Plaintiff Company without a written contract but still went ahead to pay him for the job done. That piece of evidence stood unchallenged after the trial. I therefore resolve the first and second issues in favour of the Plaintiff.

[36] Based on my analysis above it is clear that the answer to the issue iii is NO because the Defendant did not provide the Court with any cogent evidence to enable the Court come to the conclusion that all contracts entered into by the Defendant must be in writing. It was the Defendant’s say so and at the end of the trial it remained a bare statement, a say so and unsubstantiated. With regards to the issue whether the Plaintiff was obliged to know the internal arrangements of the Defendant before entering into a contract with it, I think the resolution of that issue is also of no moment since that is not central to the determination of the real controversy between the parties. The acceptable facts and the evidence heard do not make that issue relevant at all. Thus it is not necessary for the court to embark on any voyage which will not assist it in the determination of the central issue.

[37] Based on all of the evidence heard and my analysis above I hereby enter judgment in favour of the Plaintiff for the reliefs (a) and (b) endorsed on the Amended Writ of Summons. In making the order I must be quick to state that whilst the Court finds the Invoice tendered as Exhibit “E” by the Plaintiff to be unacceptable because it did not represent the actual goods supplied to the Plaintiff and the work done, nevertheless the Court found the explanation as how same was prepared offered by Mr. Gyeni to be reasonable and plausible. It is important to state that as a Judge I am not required to reject all of a witness’ testimony because I do not believe and accept part of same. A Court can reject part of the evidence proffered and accept part in doing justice to parties in a litigation. In this case I am of the view that the Plaintiff and his witnesses’ evidence on the crucial aspects of the claim are acceptable and I do accept same.

[38] On the issue of breach of contract, it is my opinion that any assessment of damages for the breach must begin with the relevant contract language and whether any such language is unambiguous. On the strength of the evidence before me and the law as applied in this judgment and based on my finding that there was a contractual nexus between the parties, albeit unwritten the determination damages ought to be awarded. The law is that generally any issue of breach of contract is considered based on the contractual language used by the parties. In this case there is no contractual language to be looked at because it was a verbal agreement. That, notwithstanding, I am of the view that the Defendant is liable for breach and to that extent it is my finding that the Plaintiff is entitled to some damages for the breach. But no evidence was led by the Plaintiff to establish the nature of damage suffered, to that extent I shall award the Plaintiff a nominal amount of GH¢2,500 for the breach of contract.

v. Conclusion and Disposition:

[39] From the totality of the evidence on record, the court holds that the Plaintiff succeeds in proving his reliefs endorsed on the Amended writ of summons against the Defendant. Accordingly, judgment is hereby entered for the Plaintiff against the Defendant for the reliefs A, B and C.

[40] Having succeeded in proving his claim, I shall award the Plaintiff Cost of GH₵ 8,000, 000 against the Defendant. Counsel for the Plaintiff asked for GH₵ 30,000 and the Defendant offered GH₵ 5,000.

[41] I cannot conclude this judgment without expressing my admiration for both Counsel for the civil manner the trial was conducted. Both Counsel deserve my commendation.