FRANCIS YEBOAH SEKYERE vs ADRIS-HOPSON
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (GENERAL JURISDICTION DIVISION),
    ACCRA- A.D 2019
FRANCIS YEBOAH SEKYERE - (Plaintiff)
ADRI S. HOPSON - (Defendant)

DATE:  30 TH JULY, 2018
SUIT NO:  GJ/304/2017
JUDGES:  KWEKU T. ACKAAH-BOAFO JUSTICE OF THE HIGH COURT
LAWYERS:  MR. FRANCIS KWAME YEBOAH WITH DANIEL ADJEI FOR THE PLAINTIFF
MR. ANTHONY LARTEY LED BY REBECCA ATTIPOE FOR THE DEFENDANT
JUDGMENT

 

i. Introduction:

[1] On the 11th day of November 2016, the Plaintiff caused the writ of summons accompanied by a statement of claim to issue against the Defendant claiming the following reliefs:

a.    Repayment of an amount of Twenty-Seven Thousand, Seven Hundred and Fifty Three United States Dollars (USD$27,753).

b.    Interest on the said amount at the current Bank of Ghana rate of interest fixed at 7% from 1st July, 2015 till date of final payment

c.    Any other reliefs deemed fit by this Honourable Court

 

[2] The Defendant entered appearance on January 17, 2017 and subsequently filed a Statement of Defence on January 31, 2017 and denied liability for the Plaintiff’s claim and counterclaimed as follows:

      i.        An order directed against Plaintiff for Defendant to recover GH¢8,000.00 from Plaintiff for unlawfully detaining Defendant’s 2 bedroom house located at Tuba with the aid of the Police.

     ii.        An order for recovery of GH¢1,500.00 from Plaintiff with interest from June 2015 till date of final payment.

    iii.        An order for Defendant to recover from Plaintiff GH¢2,000.00 with interest from December 23 2015 till date of final payment.

   iv.        A declaration that Defendant does not owe Plaintiff.

    v.        An order for cost in Defendant’s favour including legal fees.

   vi.        Damages specific, punitive and general.

  vii.        Any other order the Honourable Court deems fit and proper in Defendant’s favor.

 viii.        An order directed on Plaintiff for the immediate return of Defendant, unnumbered house located at Tuba.

 

ii. The Issues set Down for Determination:

[3] The Plaintiff filed a reply and defence to counterclaim on March 31, 2018. At the close of pleadings the following issues set out in the Application for Directions and the Additional Issues were all adopted for trial by the Court. These are:

a. Whether or not the Plaintiff arranged for an amount of Twenty-Three Thousand, Five Hundred and Twenty US Dollars (USD$23,520) to be sent to the Defendant in China for the purchase of goods in China for the Plaintiff

b. Whether or not the Defendant failed to do the purchase and kept the money for himself.

c. Whether or not the Plaintiff got the Defendant arrested in Ghana in connection with the refund of the above money.

d. Whether or not the Defendant agreed to refund the money with interest amounting to Twenty-Seven Thousand, Seven Hundred and Fifty-Three United States Dollars (USD$27,753).

e. Whether or not the Plaintiff is entitled to all the reliefs sought.

f. Whether or not the Plaintiff is entitled to his counterclaim.

 

[4] The Plaintiff gave evidence testified by himself and called no other witness at the trial after which he closed his case. The Defendant also gave evidence by himself and called no other witness in support of his case.

 

iii. The Plaintiff’s case:

[5] Per the adopted witness statement at trial the Plaintiff testified that he met the Defendant (who was living in China) in Ghana and he made him to believe that he (the Defendant) could help him purchase bathroom tissue from China. According to the Plaintiff when the Defendant returned to Chine he sent him (the Plaintiff) a proforma invoice from a company called Bo Yilai Import and Export Company for the purchase and shipment of the bathroom tissue at the cost of Twenty-Three Thousand, Five Hundred and Twenty United States Dollars (USD$23,520). According to the Plaintiff, the name of his company is Palance Aluminum System.

 

[6] The Plaintiff further testified that he got his suppliers in Hong Kong to send the Defendant the amount for same to be paid to the manufacturers of the bathroom tissue. The Plaintiff further testified that the Defendant acknowledged receipt of the money and promised to send the products to Plaintiff’s agents in Hong Kong for onward shipment to Ghana. It is the case of the Plaintiff that the Defendant failed to purchase and ship the goods to the Plaintiff as agreed upon.

 

[7] According to the Plaintiff, the Defendant later informed his agents in Hong Kong that he would refund the money to them but he never did. The Plaintiff further testified that sometime in June 2015 he heard that the Defendant was in Ghana and so he caused his arrest by the police for fraud. According to the Plaintiff the Defendant agreed that he was owing the Plaintiff an amount of US$23,520.00 and was prepared to pay back with interest.

 

[8] It is the case of the Plaintiff that with the intervention of the Police, the Defendant agreed in writing to pay the said amount plus an interest of Four Thousand, Two Hundred and Thirty-Three United States Dollars (USD$4,233) making a total of Twenty-Seven Thousand, Seven Hundred and Fifty-Three United States Dollars (USD$27,753) within two months of the agreement. The Plaintiff testified that the Defendant reneged on the agreement failed to pay. He therefore instituted this action to recover the money.

 

[9] He tendered in support of his evidence, the following exhibits:

i) Exhibit A Series – Email communication;

ii) Exhibit B Series – Emails Plaintiff says are from the Defendant;

iii) Exhibits C Series – Another batch of emails the Plaintiff said confirm the Defendant’s promise to refund the money paid;

iv) Exhibits D – A transfer of document in the amount of US$37,000 the Plaintiff says he transferred to purchase toilet rolls later in August 2015 and

v) Exhibit E – the undertaking/agreement the Plaintiff says the Defendant signed at the police station to confirm his indebtedness.

 

iv. The Defendant’s Case:

[10] The Defendant per his adopted witness statement filed also recounted how he met the Plaintiff sometime in 2014 here in Ghana. According to the Defendant, the Plaintiff expressed a desire to buy goods from China and specifically bathroom tissue. The Defendant said the Plaintiff engaged him to look for a credible supplier for him in China. Mr. Hopson testified that he later received a call from the Plaintiff who informed him that he had some Indian friends in Hong Kong who wanted to buy the products and therefore he asked him to help them.

 

[11] It is the case of the Defendant that he got a company in China by name Bo Yilai Import and Export Company to send to the Plaintiff’s friends an invoice for the bathroom tissue. He said that a few days later he received an email from the Plaintiff’s Indian friends that they have made payments to the bank account on the proforma invoice to Bo Yilai Company. He also testified that the company after receiving the money informed him by email and telephone call.

 

[12] According to him he did not hear about the transaction between the Plaintiff and Bo Yilai Import & Export Company until sometime in June 2015 when came to Ghana and the Defendant caused his arrest by the police. He testified that he was upon arrest forced to sign a written undertaking that he owes the Plaintiff an amount of $23,520.00. He also testified that the police took (GH¢ 2,000 from him for the Plaintiff and also they seized his Range Rover vehicle with Registration Number GN-3874-2016 for six days at the instance of the Plaintiff. He also testified that his two bedroom house at Kokrobite was seized by the Plaintiff with the connivance of the Police. According to him but for the seizure of his house “by now I would be earning not less than GH¢ 500 per month as rent from letting the house since June 2015 and I am desirous of recovering the amount lost from the Plaintiff herein”.

 

[13] Mr. Hopson denied receiving any money from the Plaintiff for the purchase of the goods. According to him upon receiving the proforma invoice from the company, the Plaintiff placed a direct order for the goods from the said company and paid the money for the goods directly into the company’s bank account in China. He tendered Exhibits 1 and 2 in support of his evidence.

 

v. The Court’s Opinion & Analysis:

[14] The general position of the law is that each party to the suit who alleges per their claim must adduce evidence on the facts and issues to be determined by the court to the prescribed standard set by statute Section 14 of the Evidence Act (NRCD 323) 1975 provides.

“Except as otherwise provided by law, unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or non – existence of which is essential to the claim or defence he is asserting”

 

[15] This general position on the burden of proof and of persuasion has had judicial approval by the Supreme Court in the case of ABABIO VRS. AKWASI IV [1994 – 1995] GBR 774 where Aikins JSC expounded the position as follows:

“The general principle of law is that it is the duty of a Plaintiff to prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue, the Plaintiff leads some evidence to prove his claim. If the Defendant succeeds in doing this he wins, if not, he loses on that particular issue”.

See also the case of RE: ASHALLEY BOTWE LANDS, ADJETEY AGBOSU & OTHERS V. KOTEY & OTHERS [2003-2004] SCGLR 420.

 

[16] In my examination of the evidence adduced by the Plaintiff and Defendant in the instant suit, both the Plaintiff and Defendant have an obligation to adduce sufficient evidence in support of their respective claims and my task is to assess the respective cases and select the one that emerges from the assessment as being more probable than the other based on the law. It is of moment that any litigant in a civil trial is obligated to adduce evidence in support of his case in order that upon a proper balance the logical inferences and findings would be arrived at relevant to support the conclusions. I note that in the context of the instant suit both the Plaintiff and the Defendant (Counterclaimant) carry the burden of proof and of persuasion which is to be determined on the preponderance of probabilities as defined by Section 12(2) of the Evidence Act 1975 (NRCD 325).

 

[17] The Supreme Court has further explained in the case of OKUDZETO ABLAKWA (No. 2) vs. ATTORNEY GENERAL & ANOTHER [2012] 2 SCGLR 845 at 867 in regards to the burden of proof that;

“If a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17 (b) which, emphasizes on the party on whom lies the duty to start leading evidence…”

See also the old case of BANK OF WEST AFRICA v. ACKUN [1963] 1 GLR 176.

 

[18] In respect of the first and second issues set out above, the evidence of the Plaintiff is that he met the Defendant in Ghana and it was agreed that he would get him a credible company that could supply him with bathroom tissue. That fact the Defendant admits. The evidence is also that through subsequent contact the Defendant provided a proforma invoice with the name of a company in China and as a result an amount of US$23,520.00 was paid by the Plaintiff to the said company in China. The testimony of the Plaintiff is to the effect that after the payment of the money the Defendant communicated with his financiers in Hong Kong to arrange for the delivery of the goods to Ghana. The Defendant admitted this fact and conceded that he communicated with them in regards to arranging for the transfer of the goods.

 

[19] Under cross examination, the Plaintiff testified that when the money was paid the Defendant confirmed with his financiers in Hong Kong that the payment had been received. Indeed the Defendant in his evidence in chief testified that the company informed him when the payment was made. I note that the Defendant’s position is that no direct payment was made to him and therefore he cannot be held liable. The following evidence was elicited when the Defendant was cross-examined by the Counsel for the Plaintiff on May 21, 2018

“Q: Look at Exhibit “B” series, the fifth page, at the top, this note is addressed to you, do you see it

A: Yes my Lord

Q: The message to you is (counsel reads). Does this not mean that they were expecting you to send the toilet roll to them?

A: No my Lord because the sentence is clear that I should arrange and not me responsible to send.

Q; Let us go to the next page, at the bottom, this is a message you were sending to Gavin Youg, is that not so.

A: I have seen it.

Q: The one at the bottom

A: Yes I have seen it

Q: Counsel reads. By that, were you not accepting responsibility to send the toilet roll to Hong Kong?

A: No my Lord because it is evidently clear again that I used the word arrange and not send the goods to where they are talking about.

Q: Let us go to the next page, at the top, letter dated 3/5 and it is from you to Gavin Youg again. (Counsel reads), is that your message

A: Yes my Lord

Q: So again it is showing that you were responsible for sending the goods to them, is that not so?

A: No my Lord because from day one I have not denied my involvement in this transaction, all I am supposed to do in this transaction is to arrange the goods since I am an agent to get it from China.

Q: I am putting it to you that for three months you could not arrange for the toilet rolls to be sent to Hong Kong

A: No my Lord. I did arrange. The fact of the case is even from the e-mail exhibits from their agent also stated clearly that it was Chinese holiday for the whole month. And that factories don’t work and that delayed the whole arrangement to send the goods. So it was not through any fault of mine.

Q: Tell the court, were you able to send the toilet rolls or arranged for the toilet rolls to get to Hong Kong.

A: I was not able to do that. Because sending it was beyond my powers, it is the factory’s powers

Q: Is it not true that because you were unable to send the toilet rolls to Hong Kong for shipment, you were asked to refund the money to Hong Kong.

A: Yes my Lord they approached me to help refund the money which I told them even in their exhibit that I will speak to the factory and see how that can be possible. I did that. Initially the factory promised me to return the money to them but they gave me a clear explanation that unless they sell the goods before they will return the money which I informed the Plaintiff

Q: So what you are telling the court now is that you accepted the responsibility to return the money, is that not so

A: No my Lord. I have explained that it was the factory which was supposed to refund, after all the money did not come to me my personal account. And my lord from their exhibit the bank transaction receipt that they have printed, it is from the bank in China, the same way they could have gone to Registrar General in China and print the name of the directors of the company out. In fact that went there, they did print it out and they realized that it was not my name and I am not the owner of the company”.

 

[20] I find from the evidence on record and states that I have no difficulty in coming to the conclusion that the Plaintiff was introduced to a Company in China called Bo Yilai and I also find that it was the Defendant who sent to the Plaintiff the profoma invoice of the Company which contained the account details in which the Plaintiff made the payment of US$23, 000 to the company in China. The Defendant admitted that the goods were not shipped from China to Hong Kong where according to him the Plaintiff’s friends were to see to the onward transmission to Ghana. The above assemblage of evidence notwithstanding, I note that one thorny issue which engaged Counsel for the Defendant and the Plaintiff at trial was whether or not the payment was made directly to the Plaintiff or to the Company Bo Yilai. According to Mr. Lartey the Defendant is not the owner of the Company and not a shareholder or director either and therefore based on the law he cannot be held personally liable for the non-delivery of the goods.

 

[21] The Court’s simple response to the Defendant and Counsel is that their position is disingenuous and simplistic. First and foremost, from the evidence the Defendant dealt directly with the Plaintiff. He provided the proforma invoice which had the account to which the Plaintiff made the payment. There is no evidence that the Defendant at any time introduced the Plaintiff to any Director/Shareholder of Bo Yilai to the Plaintiff. The Plaintiff has never been to China and the Defendant who touted himself as a teacher admitted he is resident in China and he was to arrange for the transfer of the goods to Hong Kong. He admitted that the goods were not shipped to Hong Kong based on explanations the Court finds to be bizarre and without reason. For example, it beggars belief that even after the Chinese holiday season to which the Defendant alluded, the Plaintiff’s order could still not be filled. All the excuses notwithstanding, it is important to point out that the Defendant has not been able to lead concrete evidence to show who at Bo Yilai received the amount of $23,520 paid by the Plaintiff for the goods he admitted he could not arrange to be shipped to Hong Kong.

 

[22] Based on all of the above therefore, I resolve the first two issues set down in favour of the Plaintiff. With regards to the issues (c) and (d) again, the evidence led at trial establish that the Defendant was arrested at the behest of the Plaintiff in June 2015 and he signed a document that he would pay $27,752.00 to the Plaintiff. The Defendant admitted that he was arrested and also admitted that he signed document tendered as ExhibitE” at trial though he contends that he did so under duress. Without considering whether or not the Defendant signed the said document under duress at this stage, I resolve those issues in favour of the Plaintiff and find that the Defendant was arrested by the police in Ghana in June 2015 and he admitted liability and therefore signed an undertaking to refund the money paid by the Plaintiff to him.

 

[23] I now turn first to whether or not the Defendant is entitled to his Counterclaim. Now, having diligently scrutinized the evidence, I have no difficulty in coming to the conclusion that the Defendant’s Counterclaim must also fail because as was conceded by his Counsel, Mr. Lartey in his written submission the Defendant did not proffer a scintilla of evidence to establish the allegations he made for the counterclaim including the payment of money to the police and the alleged seizure of his house. 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 any civil action 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) also held that “where a fact was capable of positive proof it was wrong to rely on assumptions”. Therefore to the extent that no evidence was led at trial by the Defendant the Counterclaim is dismissed.

 

[24] The Defendant contests the signing of Exhibit “E” on the grounds that he did so under duress. Now let us hear what he said in regards to that under cross-examination. The following exchange was between the Plaintiff’s Counsel on May 23, 2018 under cross-examination:

“Q: In your witness statement you have indicated at your paragraphs 10 and 12 that you gave money to the police for the benefit of the Plaintiff. Do you have anything to show that you truly gave money to the police?

A: I do not have any evidence to show.

Q: I am putting it to you that you never gave any money to the police at all and at any rate, not for the benefit of the Plaintiff

A: My Lord, it is an open secret that when police arrest you like in my circumstance when it is Christmas you have to sing Christmas carol to them and that was exactly what I did. I sang the song.

Q: I am putting it to you that by Exhibit E you accepted that you owe an amount of USD$27,753 to the Plaintiff and you should be allowed to pay this amount or its equivalent in Cedis with appropriate interest.

A: No my Lord. I was forced to write this Exhibit “E”. the police man dictated to me to write and my lord we all know that under normal circumstances if somebody is arrested on the charges they gave me, one, the police should proceed straight to court. Two, the very day they bailed me was a holiday 1st July and we all know in the police station they do not bail on a holiday. They did that to force me to sign this statement with idea that if I don’t I will be inside till the next Monday. So I signed it.

Q: I am putting it to you finally that Exhibit “E” that you signed that in consonant with what happened in China where you could not send the toilet rolls to Hong Kong

A: No my Lord, because sending money to a company’s account on a normal transaction level is different from arresting an individual who has no shares in that company. My lord apart from this, after I signed this Exhibit E the following year I was arrested again on a pretence that I have used his money to buy a new range rover so the police has to seize the range rover…..”

 

[25] In my respectful view the above evidence of the Defendant does not support his allegation of duress at all. Rather as Counsel for the Plaintiff pointed out, the signing of the document was a confirmation of what happened in China and the Defendant’s narrative about duress is merely aimed at manufacturing a fog of war to obfuscate matters especially as I do take judicial notice of what he appears to treat as notorious facts. Without doubt, in my respectful opinion the Defendant’s defence that he is not a shareholder of Bo Yilai Company and therefore he cannot be held liable is of no moment based on the totality of the evidence. He made the Plaintiff to believe that he was either the owner of the Company or at the very least had a direct involvement in its operations. For instance as part of Exhibit “A” series the Defendant wrote an email on Friday, February 06, 2015 at 10:39 which reads as follows:

“Your people just called to say that my account number doesn’t have a company name, tell him the company name is at the top of the invoice BO YILAI IMPORT EXPORT COMPANY”

To my mind in the face of such clear statement by the Defendant this Court shall do a great injustice to the Plaintiff if the Defendant’s position is acceded to after having led the Plaintiff to part with over twenty thousand dollars to a phantom company of which only the Defendant knows its existence.

  

[26] I note that as a witness the Defendant appeared to be arrogant, evasive and cocky. The Defendant’s testimony in the light of its internal inconsistencies and its consonance with the other evidence heard before the Court and with the probabilities inherent in the circumstances, it is my judgment that the Defendant’s evidence led is not worthy of any credit on the key parts relevant to his claim and I do not believe him. I found that Mr. Hopson was often evasive, belligerent and unresponsive under cross-examination and was determined to stick to his rehearsed narrative to absurd levels, and admit what he believed favoured his defence all in an attempt to evade his responsibility to the Plaintiff and recruit this court to facilitate this evasion.

 

[27] From the evidence on record whilst the court holds that the Plaintiff is entitled to his claim, the Court however has no basis to hold and accede to the ($4,233) as interest calculated onto the main amount of $23, 520 to make the total $27,753. There was no evidence as to how that interest was arrived at. This was further buttressed by the fact that Plaintiff’s own Exhibit “A” series tendered at trial includes a Standard Chartered wire transfer in the amount of $23,520 to Bo Yilai and not more. That being so, I hold that there is no basis to find that the amount payable by the Defendant to the Plaintiff is $27,753 together with interest.

 

[28] I find therefore that the total indebtedness of the Defendants to the Plaintiff is $23,520 being the amount paid by the Plaintiff to the said Bo Yilai Company, an operation of which I find the Defendant to be a directing mind and actor. I also hold that the Plaintiff is entitled to interest based on the USA Federal Reserve rate on the amount of $23,520 from February 2015 until the date of final payment.

Costs of GH¢5,000 will be awarded the Defendants against the Plaintiff.


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