IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION FIVE),
ACCRA- A.D 2019
ALLIED COMPANY LIMITED - (Plaintiff)
LEGACY GENERAL CONST - (Defendant)
DATE: 9 TH JANUARY, 2018
SUIT NO: RPC/175/15
JUDGES: GEORGE BUADI J HIGH COURT (COMMERCIAL) 5
JEMIMA DEI (HOLDING BRIEF OF BENSON NUTSUPUI) FOR PLAINTIFF
KWASI ADU MANTE FOR DEFENDANT
1 By a writ of summons plaintiff’s action against defendant simply is for:
i. recovery of the sum of GH¢350,528.33 being balance outstanding against the Defendant for lubricants and petroleum products supplied to the Defendant which sum the Defendant has failed or refused to pay despite repeated demands.
ii. Interest on the said GH¢350,528.33 at the prevailing bank rate from the 1st day of April, 2013 to the date of final payment.
2 Plaintiff is an incorporated oil marketing company, with its main office in Accra. Defendant is one of its customers to which it supplies petroleum products on credit on request. Plaintiff states that defendant resorted to breaching terms of their Agreement by failing and/or refusing to pay for products it had supplied on credit, and thus defendant had been indebted to it to the tune of GH¢350,528.33. Plaintiff avers that defendant has failed to settle the indebtedness despite repeated its demands including a letter from its lawyers. According to plaintiff, defendant shall not settle its indebtedness to it unless the court compels it by order.
3 Defendant admits the credit supply arrangement with plaintiff for supply of petroleum products. It however denies breaching the terms, contending that it strictly kept to the terms of the supply agreement, as plaintiff did not hesitate to supply it with products upon request. Defendant claims to have made series of payments to plaintiff, which plaintiff has not been taking into account in calculating its outstanding indebtedness. Defendant contends that it had made several efforts in drawing plaintiff’s attention to the anomalies in its account with plaintiff but same yielded no results. Defendant says it is ready to pay his just debt only after an accountant or an auditor has calculated all its transactions with plaintiff to reveal its true and proper indebtedness to plaintiff. It denies therefore owing plaintiff.
4 The pretrial court set down the following single straight issues for trial:
Whether or not the Defendant is indebted to the Plaintiff to the tune of GH¢350,528.33 being balance outstanding against the Defendant for the supply of lubricants and petroleum products to it by the Plaintiff. Any other issues arising on the pleadings.
5 Both parties have serially defaulted in complying with the court’s directives for trial; defendant in particular with respect to filing of witness statements. Defendant had had to engage new lawyers1 following withdrawal of their earlier lawyer. After series of defaults following extension of time for defendant in particular to file its witness statement, the court on 20 November 2017 had no option than to crack the whip by resorting to its prerogative powers in accordance with Rule 7A, subrule 3b of Order 32 of the Rules of Court2 to strike out defendant’s statement of defence.
6 Hearing of the suit since had to be adjourned to enable defendant’s lawyers to be served, but service of the hearing notice on the new lawyer did not change anything, as on the scheduled hearing, defendant and its lawyers were absent when plaintiff opened 1 Kwasi Adu Mante 2 2004, C.I. 47 its case on 8 January 2018. Notwithstanding their absence, and pursuant to Order 36, rule 1(2), C.I. 47) hearing of plaintiff’s case proceeded.
7 Evidence in proof of plaintiff’s case was by means of a sole witness statement filed by its Chief Operating Officer, Enoch Asamoah-Adjei. I have earlier stated that defendant and her lawyers failed to make appearance for the trial, and that the court had had to strike out their defense. Defendant’s absence does not absolve plaintiff of its duty to lay proof of its claim according to law. Secs. 11 & 14, Evid. Act. BWA Ltd v. Ackun  1 GLR 176 SC. Neither is the court relieved of its duty to evaluate plaintiff’s evidence and to base its decision according to law. After all, defendant does not assume any duty at all to disprove plaintiff’s case, unless determination of an issue in its favour hinges on a balance of probabilities and it provides no evidence on the issue. See In Re: Ashalley Botwe Lands [2003-2004] SCGLR 420.
8 It was not established or proven at the trial the agreement plaintiff has entered with defendant, and the terms thereof which defendant is purported to have breached. All the same, I have checked through plaintiff’s evidence in chief, particularly the exhibits tendered in proof of the claims. Obviously, upon default of payment of its indebtedness, and that subsequent to plaintiff’s commencement of the suit on 1 June 2015, defendant through its lawyers on 18 June 2015 per Exhibit ‘F’ wrote to plaintiff declaring its intention to settle the matter out of court. In fact, defendant made proposals in that regard, and called on plaintiff to consider waiving interests. In that letter defendant avers that plaintiff have not captured certain payments it had made to plaintiff. Nonetheless, I view Exhibit ‘F’ as explicit admission of defendant’s indebtedness to the plaintiff.
9 According to plaintiff’s witness, it is not true that defendant has made payments ostensibly in settling part of its indebtedness, which plaintiff has not captured in the accounts. Neither is it true, according to plaintiff that defendant has raised any issue for reconciliation of accounts. I find Exhibit ‘A’ as a statement of ledger accounts of defendant covering the period ending 26 February 2015, with debit balance outstanding of GH¢350,528.00. I find it uncertain, indeed unproven how as at the time of commencement of the suit in 1 June 2015, defendant’s indebtedness of GH¢350,528.00 had remained unchanged as at 12 July 2017 almost two years unless perhaps interest has been waived or its calculation stopped.
10 Nonetheless, neither defendant nor its lawyer is here in court to challenge or mildly put, to test plaintiff’s claim with respect to the real amount plaintiff considers to be its real indebtedness to plaintiff. In default of any such evidence, the court is satisfied to hold that on the face of the unchallenged evidence, and on the balance of probabilities, plaintiff action must succeed. The court upholds plaintiff’s claim and grant all the reliefs plaintiff seeks from the court.