The Plaintiff’s statement of claim discloses that it is a Ghanaian registered limited liability company engaged in the business of plant and equipment hire. The Defendant, also a Ghanaian registered limited liability company is in the business of rock quarry. In or about November, 2011, Plaintiff entered into a contract with the Defendant for the hire of a Caterpillar Excavator 330 BL. The agreed rate for the said hire was One Hundred and Twenty US Dollars (US$120.00) per each hour worked by the said excavator. Bills were however to be issued at the end of each month and payment effected by the Defendant after any queries on the said bills had been raised and addressed. Plaintiff says that payment for the first bill issued, delayed for almost a month even though the Defendant was by the terms of the agreement required to settle same within fourteen (14) days of receipt of an invoice. No further payments were made by the Defendant despite its continuous use of the said excavator and in spite of the persistent demands on it to make good its indebtedness to Plaintiff. Consequently, Plaintiff proceeded to terminate the contract. It is the case of Plaintiff that the Defendant’s indebtedness at the time of the said termination stood at One Hundred and Eighteen Thousand, Nine Hundred and Six United States Dollars (US$118,906.00).

However, all attempts to get Defendants to make good the said amount have till date proved futile. Plaintiff therefore, on the 30^th day of March, 2012 caused the present writ to be issued for the following reliefs:

a) An order compelling the Defendant to pay all sums owed the Plaintiff under their hire contract.

b) Interest at the commercial bank rate on the said sums owed from the time they became due until date of final judgement.

c) General damages for breach of contract. d)  Costs.

e) Any further orders as this Court may deem fit.

The Defendant for its part, contends that the Plaintiff is not entitled to its claims. According to the Defendant, the verbal agreement it entered into with the Plaintiff was in respect of two excavators and trucks. The Plaintiff had failed to furnish any invoices as agreed but the Defendant had effected a series of payments to Plaintiff per the Plaintiff’s own instructions. After the Defendant suffered some financial setbacks it entered into another agreement with the Plaintiff to pay Ten Thousand Ghana Cedis (GHȼ10,000.00) but the Plaintiff, according to the Defendant, “pulled out of the agreement”.

At the close of pleadings the Parties isolated the following issues for determination.

a) Whether or not the Plaintiff issued invoices to the Defendant for the use of the excavators.

b) Whether or not Defendant was to pay $120 per hour to the Plaintiff

c) Whether or not the Defendant effected series of payments to the Plaintiff.

d) Whether or not the Defendant is indebted to the Plaintiff in the sum of One Hundred and Eighteen Thousand, Nine Hundred and Six United States Dollars (US$118,906.00).

e) Whether or not the Defendant is indebted to Plaintiff for the number of hours the excavators worked for the Defendant.

f) Whether or not the Plaintiff is entitled to the claims as endorsed on the writ of summons.

As is obvious from the issues settled for trial, it is not in dispute that the Parties entered into a contract for the hire of two (2) excavators and two (2) trucks sometime in October, 2011. At the core of the dispute however, is whether the Defendant is indebted to the Plaintiff and if it is, whether the said indebtedness is in the sum claimed by the Plaintiff. The issues set out above can therefore in my opinion be summarized into 2 main issues being;

a) Whether or not Defendant is indebted to the Plaintiff in the sum claimed

b) Whether or not Plaintiff is entitled to the reliefs endorsed on its writ of summons

The general rule is that in civil cases, it is the party who asserts facts essential to the success of his case who assumes the burden of proof. In other words the legal or persuasive burden is on the party who will loose on an issue if he does not produce sufficient evidence to establish the facts alleged to the requisite legal standard. This legal position was clearly stated in the Supreme Court case of OKUDZETO ABLAKWA (NO. 2) [2012] 2 SCGLR, 845 @ 847 where the Court stated as follows;

“This approach will be consistent with the established rule, which is that he who asserts assumes the onus of proof. The effect of that principle is the same as what has been codified in the Evidence Act, 1975 (NRCD 323), Section 17(a) ….. What this rule literally means is that if a person goes to court to make an assertion, the onus is on him to lead evidence to prove his allegation unless the allegation is admitted. If he fails to do that, a ruling on the allegation will go against him. …..Stated more explicitly, a party cannot win a case in court if the case is based on an allegation he fails to prove or establish.”

On the facts before me, Defendant denies that it owes Plaintiff any monies for the hire of the said excavators and/or trucks. Defendant insists that it had discharged all its financial obligations towards the Plaintiff at the time the contract was terminated in March 2012. A third party by name Mc Larke had been introduced to Defendant as the true owners of the equipment after which Defendant per an agreement reached, had effected a series of payments directly to the said third party. Exhibits 1 and 2 were tendered in proof of the said payments. Defendant maintains that no demand for payment was made by Mc Larke or Plaintiff upon termination of the contract because they neither owed Plaintiff nor Mc Larke at the time. In light of this denial, it was the Plaintiff who shouldered the persuasive as well as the evidential burden of establishing that the Defendant was indeed indebted to it in the sum claimed.

Nigel Sackey, the Managing Director of Plaintiff Company testified on its behalf. I found that the testimony of Plaintiff’s representative was generally not in line with its pleadings. Indeed it was from the testimony of the Plaintiff’s witness, as captured in his Witness Statement that it emerged that the agreement entered into between the Parties was for the rental of two (2) tipper trucks and 2 excavators and not just one excavator 330 BL as averred to in Plaintiff’s pleadings. Plaintiff also testified that the Defendant’s indebtedness stood at One Hundred and Fifty –Four Thousand, Four Hundred and Sixty-Seven United States Dollars, Ninety Cents (US$154,467.90). This was contrary to the amount of One Hundred and Eighteen Thousand, Nine Hundred and Six United States Dollars (US $118,906.00) stated in the statement of claim. Be that as it may, it is noted that the Defendant did not object to these material facts at the time they were being offered in evidence, even though the same was not pleaded. I think it is well settled that evidence which is not inadmissible per se will be admitted and considered by the Court if led without objection. See the case of BISI v TABIRI {1987-88} GLR, 360. This Court is therefore bound to consider the said unpleaded matters in its evaluation of the evidence led at the trial.

The Witness tendered Exhibits A, B, C, D, E, F, G, H and K said to be invoices raised and submitted to Defendant for its use of Plaintiff’s equipment. It is the case of the Plaintiff that it entered into three (3) separate agreements with the Defendant. The first, which was for the rental of Tipper Trucks was entered into for a period of six (6) months starting on the 7^th day of October, 2011. The hourly rate for the said rental was Sixty-Five United States Dollars (US$65.00) per hour. The second set of agreements, which were for the rental of two (2) caterpillar excavators were executed on the 17^th day of October and on the 14^th day of November, 2011 respectively. That of the 17^th day of October, 2011 was for the rental of the CAT 330 CL Excavator at an hourly rate of One Hundred and Five United States Dollars (US$ 105.00) whilst that of the 14^th day of November, 2011 was for the rental of Plaintiff’s CAT 330 BL Excavator. The agreed hourly rate for the rental of the BL Excavator was One Hundred and Twenty United States Dollars (US$120.00). It was further agreed, that the Defendant would bear the cost of mobilization and demobilization of the equipment. This was at an agreed cost of Seven Thousand United States Dollars (US $7,000.00) as evidenced by EXHIBIT J. I must say that I find the use of the word “executed” in this context rather confusing. Having testified that it was an oral contract, does the Plaintiff mean that the contract had been fully performed or completed on those dates or that it was on those dates that they commenced? The BLACK’S LAW DICTIONARY defines the word “execute” as “to perform or complete (a contract or duty)… to make a legal document valid by signing.”

My confusion is further heightened by the answers given by the Plaintiff’s representative on the issue. This is the exchange that ensued between the Witness and Counsel for Defendant during Cross-Examination on the 10^th of April.2017.

Q: Were you personally present when the Plaintiff entered into the agreement with the Defendant

A: Yes please

Q: And this was on the 07/10/2011

A: No Counsel because the agreement was done before then but the 7^th was when the document as [sic] typed. Sorry the 7^th was when the machine arrived on site, the excavator

Q: In paragraph 11, of your Witness Statement you stated that the first verbal agreement was executed on the 7^th of October, 2011. Is that correct?

A: Yes Counsel

Q: No document was executed between the Plaintiff and the Defendant

A: That is not so Counsel

Q; Do you have a copy of what was executed

A: Yes it is part of the exhibits

Q: You have the witness statement before you can you show us which exhibit you are referring to

A: These are invoices but there is supposed to be a contract attached….

Q: … Paragraph 10 presupposes that there was no written contract between Plaintiff andDefendant

A: There was a contract because there has to be an agreement before a contract…

I believe the lack of clarity in the answers given by Plaintiff’s witness is quite obvious. The Defendant gave a completely different version of what transpired between the Parties. Its representative Kofi Biney, testified that the Plaintiff had made it clear to the Defendant at the inception of the said agreement that the said equipment were already being used by another mining company known as Golden Star Resources Ltd. (GSR) .As a result, the said GSR Company was always to have priority as far as the use of the said equipment was concerned. In other words, the Defendant would only have use of the equipment when the said GSR did not need the same. The Defendant says that it was for this reason, coupled with the Plaintiff’s own recognition that mining was not the Defendant’s core business, that the Plaintiff agreed that Defendant pay the market rate of One Thousand, Eight Hundred Ghana Cedis (GHȼ1,800.00) for eight (8) hours per day, for the use of the excavators and Eight Hundred Ghana Cedis (GHȼ800.00) per day, for the use of the trucks. Like the Plaintiff, Defendant did not plead these facts but no objection was taken to same at the trial. It therefore forms part of Defendant’s evidence and will be considered in the determination of the suit.

I note that it is not in contention that Defendant’s bill was to be accumulated and an invoice raised and furnished Defendant for payment to be effected at the end of each month. Under cross-examination on the 10^th of April, 2017, Plaintiff again had this to say.

Q: Apart from the operators, those who were operating the machines, did you have any other person on site to check the number of hours your machine worked?

A: Yes my Lord.

Q: So they kept tally cards

A: Yes my Lord

Q: And at the end of every working day they had to sign and the Defendant representative also had to sign, is that right?

A: Yes my lord.

Q: And this was done throughout the duration of the contract. A: Yes my lord.

A: Mr Sackey where are the tally cards showing the number of hours your machines worked?

The tally cards are with the site representative my lord.

Q: You brought the Defendant to Court claiming they had not paid for the number of hours your machines worked on their site. You did not think it is necessary for the court to see the tally cards.

A: No my lord because the summary of the tally cards is what we have in the respective exhibits my lord.

Now, it is clear that it is the case of the Plaintiff that EXHIBITS A to H and K were raised based on information extracted from some tally cards. These cards by the terms of the agreement, were to be signed at the end of each working day by the representatives of both Parties. It is apparent that this was to serve as evidence of hours worked by the said equipment on Defendant’s site each day. Given the vehement denial by the Defendant of the hours and rates stated in EXHIBITS A to H and K, one would have expected the Plaintiff to have produced the said tally cards or to have called the site representative who is supposed to have recorded the hours worked to corroborate its case. If the said invoices were indeed a summary of information extracted from the said tally cards, why did Plaintiff not tender a single tally card in evidence to confirm the authenticity of EXHIBITS A to H and K? It is rather strange to say the least that Plaintiff did not consider it necessary to produce such vital evidence even though its representative confirmed under cross-examination that they were still with the site representative. He offered no explanation for Plaintiff’s failure to do so. It should be borne in mind that the onus was on the Plaintiff to prove all its allegations by cogent and convincing evidence.

This was particularly imperative when Plaintiff’ assertions had been denied by Defendant. This principle was clearly stated in the case of KLAH v PHOENIX INSURANCE [2012] 2 SCGLR 1139 as follows:

“Where a party makes an averment that is capable of proof in some positive way eg by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated by his witness. He proves it by producing other evidence of facts and circumstances from which the Court can be satisfied that what he avers is true.”

Another hurdle Plaintiff failed to surmount was its inability to explain the absence of Defendant’s signature on the invoices purportedly issued to Defendant and tendered as Exhibits A to H and K. The reason for Plaintiff’s failure to secure the Defendant’s signature on the said exhibits was not made clear at the trial. In my considered opinion, the Plaintiff’s own exhibits seem to support the Defendant’s contention that no invoices were ever issued to them by the Plaintiff. I am not enthused to attach any weight to them as they are in my view self- serving. Consequently, it is my finding that the Plaintiff had failed to furnish the Defendant with any invoices during the subsistence of the contract. There is also no iota of evidence on record to substantiate the Plaintiff’s claim with regards to the agreed rate payable for the use of the excavators and the trucks. The Defendant contends that the Parties had agreed that the Defendant will pay the market price of One Thousand, Eight Hundred Ghana Cedis (GHȼ1,800.00) for 8 hours each day in the case of the excavators and Eight Hundred Ghana Cedis (GHȼ800.00) for the trucks. They deny that it was One Hundred and Twenty United States Dollars (US$120.00) and Sixty-Five United States Dollars (US$65.00) respectively as contended by the Plaintiff. The main reason given by the Defendant for having been offered these rates was that the machines were already being used by GSR, which meant that the Defendant would only have access to the equipment when GSR had no use for them. The evidence on record shows that this assertion was not seriously challenged by the Plaintiff except to say that it was the trucks and not the excavators that were being used by GSR. Even then Plaintiff admitted that it had agreed to charge Defendant “not far less but a little less” than what was being charged GSR.(See page 17 of record of proceedings).

Given the conflicting contentions put forward by the Parties on the issue, one would have expected the Plaintiff to assist the Court by for instance, providing evidence on the rates charged GSR to enable the Court determine which party’s claim was more probable. This was however not done.

I regret to say the Plaintiff presented a poor case. It is quite obvious its representative could not even remember the exact terms or nature of the agreement entered into with the Defendant. After having stated that there was in existence a written contract, the Witness stated the following in another breath under cross-examination;

Q: You did not state the date the three different dates the contract commenced in your Witness Statement, is that right

A: Yes my Lord because these were verbal agreements not contract

The inconsistencies in the case being put forward by Plaintiff are so numerous and confusing that the Court cannot make sense of its claim. Was the agreement or agreements as he put it, verbal or written? And if they were written, where are copies to assist the Court ascertain the actual terms reached by the Parties? The Witness’s faulty recollection of events makes it unsafe for this Court to attach any value to his testimony. Also damning to Plaintiff’s case is the constant shifting of the “goal posts” regarding the actual amount owed by the Defendant. As already observed, the Plaintiff in its statement of claim averred that Defendant owed it an amount of One Hundred and Eighteen Thousand, Nine Hundred and Six United States Dollars (US$118,906). In its testimony however, it sought to adjust the figure upwards to One Hundred and Fifty-Four Thousand, Four Hundred and Sixty- Seven United States Dollars, Ninety Cents (US$154,467.90). I tend to agree with Counsel for Defendant that the sum total of all the invoices put together gives a figure over and above the said One Hundred and Fifty-Four Thousand, Four Hundred and Sixty-Seven United States Dollars, Ninety Cents (US$154,467.90) being claimed by the Plaintiff. Clearly, the question of Defendant’s indebtedness still remains an allegation to be proved

It should be necessary to point out at this stage that I am not oblivious to (what I consider to be) the weaknesses in the Defendants case. I am for instance not convinced, that the Defendant kept no records of payments made to Plaintiff or records of hours worked by the said trucks and excavators on its site. But it remains the legal position that the Defendant had no duty to disprove anything unless the evidentiary burden shifted. This principle is expressed by the legal maxim “Ei incumbit probatio qui dicit, non qui negat” meaning “The burden of proof rests on the one who affirms, not the one who denies”. See page 1715 of the BLACK’S LAW DICTIONARY [8^th Edition].

For the Plaintiff to have succeeded on its claim, the probabilities ought to have substantially been in its favour. Even if the probabilities were evenly balanced, Plaintiff will still not succeed on its claim. I find that the Plaintiff did not make out a sufficient case to require the Defendant to displace its evidence and for the Court to decide in whose favor the probabilities weighed. In my considered opinion, there is insufficient evidence to support a finding that Defendant is indebted to Plaintiff in the sum of One Hundred and Fifty-Four Thousand, Four Hundred and Sixty-Seven United States Dollars, Ninety Cents (US$154,467.90) or at all or that the Plaintiff is entitled to the other reliefs endorsed on its Writ. I consequently find and hold that Plaintiff has failed to prove its claim. Plaintiff’s action is accordingly dismissed. I award costs of Three Thousand Ghana Cedis (GHȼ3,000.00) in favour of Defendant against Plaintiff.

DECISION

Plaintiff’s action dismissed.

Costs of Three Thousand Ghana Cedis (GHȼ3000.00) in favour of Defendant.