IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2018
SAMPSON AMOAKO- (Plaintiff)
ANDY APPIAH - (Defendant)
DATE: 23 RD MAY, 2018
SUIT NO: P/RPC/01/17
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
RICHARD ABABIO FOR PLAINTIFF
WISDOM SMITH AKORLI FOR SARFO GYAMFI FOR DEFENDANT
The parties to this suit are blood relatives and it is alleged that sometime in June, 2006, the defendant was given a financial assistance of Eight Thousand US Dollars (USD 8,000.00) by the Plaintiff at his request, to be repaid by 31/05/2007. The Defendant is alleged to have paid USD 2000 out of the sum of USD 8,000.00, but has refused to pay the balance after several demands had been made on him over the years. Thus, the Plaintiff has sued for recovery of the outstanding balance of USD 6,000.00 and interest thereon till date of final payment.
The Defendant denied taking any financial assistance from the Plaintiff, he alleged that in the past, he purchased a return ticket for the Plaintiff to travel to London with his credit card at an interest of 9% per month. It was mutually agreed that the Plaintiff would refund the ticket price and all interest that will accrue but he failed to do so. The Defendant asserted that he was compelled to pay the credit card debt of USD 8,976.00. That apart, the Defendant averred that in the past he advanced a financial assistance of USD 30,000.00 to the Plaintiff and USD 3,000.00 is still outstanding. Together with the debt arising from the credit card used to purchase a ticket for the Plaintiff, the Defendant counterclaimed that the Plaintiff owes him USD 11,976 and interest thereon, from the year 2000 till date of final payment. In his reply, the Plaintiff denied the Defendant’s assertions, he averred that on or about 1999/2000, the Defendant imported USD 20,000.00 worth of Agro chemicals through the Plaintiff’s Company, Sandi More Ltd (now defunct). After the sale of the said products, the Plaintiff contended that the cedi equivalent of USD 28,000.00 which was realized, was paid to the Defendant. He denied owing the Defendant at all.
ISSUES FOR TRIAL
When the pre-trial settlement broke down, six issues were agreed to be tried, namely:
Whether or not the Defendant collected Eight Thousand US Dollars ($ 8,000.00) from the Plaintiff?
Whether or not the Defendant has paid Two Thousand Dollars ($2000.00) out of the eight thousand dollars ($8,000.00) collected from the Plaintiff leaving an outstanding balance of Six Thousand US Dollars ($6,000.00)?
Whether or not the Defendant used his credit card to purchase a return airline ticket to London for the Plaintiff at a cost of US$ 1200.00?
Whether or not the cost of the ticket attracted an interest rate of 9% per month?
Whether or not the Plaintiff is entitled to his claim?
Whether or not the Defendant is entitled to his counterclaim?
The principle of proof in civil suits is that a party whose positive assertions have been denied, must lead credible evidence to prove the same so that by the preponderance of the evidence on the record, the court will find that party’s case as more probable and convincing. (Insert authorities). The degree and nature of such proof have been clearly spelt out under sections 11(4) and 12 of the Evidence Act, 1975 NRCD 323 as follows:
In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence.
12. Proof by a preponderance of the probabilities.
(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.
(2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence.
ISSUES OF DEFENDANT BORROWING $8000.00 FROM PLAINTIFF AND REPAYING $2000.
These are issues (1) and (2) and the onus is on the Plaintiff to prove the same. The Plaintiff gave evidence through his lawful attorney. He gave oral evidence and also relied on a loan agreement executed by the parties, exhibit ‘A’. According to him, the Defendant took a loan of $8000 from the Plaintiff on 01/06/2006 with a promise to repay the same at the end of May, 2007 as contained in exhibit ‘A’. He testified that the Defendant repaid $2000 subsequently and has been pleading for more time to repay the difference over the years. The Plaintiff also said he was aware of the importation of agro chemicals by the Defendant through the now defunct SANDI MORE Ltd. of which the Plaintiff was Managing Director on or about 1998 to 2000.
Exhibit ‘A’ states:
LOAN AGREEMENT- 1ST JUNE 2006.
I Andy Appiah have received a loan amount of Eight Thousand United States Dollars from Sampson Amoako.
The terms and conditions are as follows:
I will pay him interest of Twelve Million Cedis (now GHC 1200) in every three months for a period of one year.
I will pay him the full amount of Eight Thousand United States Dollars by 31st May, 2007.
I can decide to pay the full amount and quarterly interest within the year
Andy Appiah Sampson Amoako
WITNESS (sgd.) WITNESS (sgd.)
VALLBY APPIAH CHARLES AMOAKO.
RICHARD FRIMPONG ANSAH.
In cross-examination, counsel for Defendant sought to discredit the Plaintiff’s testimony on two main grounds: namely (i) the Plaintiff advanced the money to the Defendant to be applied to a joint timber business between the parties but it was not successful because of litigation over the land on which the sawmill was situate, and (ii) the Plaintiff turned down all requests by family members, including Charles Amoako who witnessed exhibit ‘A’, to drop this case, but he refused. In response to these, the Plaintiff’s attorney told the court, during cross-examination, that the Defendant requested for money to inject into his business, but did not indicate the nature of the business. In fact, counsel for the Defendant devoted a substantial part of his cross-examination to “brothers helping each other financially” in times of need. In terms of exhibit ‘A’, I do not see the relevance of this line of cross-examination. If the parties did not intend to create any legal relations with regards to the money advanced to the Defendant by the Plaintiff, they would not have executed exhibit ‘A’ whose terms and conditions can be readily ascertained on the face of the document. Richard Frimpong, who signed as an “observer” on exhibit ‘A’, testified as PW1. He told the court that he knows both parties and that the Defendant’s request for a loan of $8000 was made in his presence. Further, PW1 testified that he was a witness to exhibit ‘A’ which embodies the terms of the loan given to the Defendant. In cross-examination, counsel for the Defendant challenged the testimony of PW1 on the ground that he was neither a witness nor an observer to exhibit ‘A’, but PW1 stood his ground. He maintained that he signed exhibit ‘A’ when it was made.
It is true that on the face of exhibit ‘A’, PW1 signed as an observer, but in his evidence before this court, he indicated that he signed as a witness. But the, the word ‘observer’, is synonymous with words such as ‘witness, eye witness, spectator or onlooker’. What can be said of exhibit ‘A’ before this court is that each party to the loan agreement had someone witness the agreement for him. PW1, who was present, and knows both parties, also signed the document, having observed the entire process. The use of the word ‘observer’ in reference to PW1 on exhibit ‘A’ does not change the fact that he saw the execution of the agreement and he also appended his signature on the document. In fact, PW1 can also be described as a witness to exhibit ‘A’ within the ordinary meaning of the word. In terms of section 80 of the Evidence Act, NRCD 323, the mere fact that PW1 told the court that he was an observer does not affect the credibility of his testimony. The court finds the testimony of PW1 as credible and reliable. Counsel for the Defendant sought to suggest in cross-examination that the proper witness for the Plaintiff ought to be Charles Amoako, and not PW1, but the Plaintiff knew that the said Charles Amoako will not testify in his favour that was why he was not called as a witness.
This position is quite ludicrous. It is not the duty of a Defendant to define the parameters of a Plaintiff’s case, let alone determine which witnesses a Plaintiff must call. A Plaintiff in a civil suit has the onerous burden of establishing his or her case on the balance of probabilities, and this burden is to be discharged through credible testimony of the Plaintiff, material witness or witnesses, admissible hearsay, documentary evidence, among others as was held in Ackah v Pergah Transport Ltd (2010) SCGLR 728. That apart, it is the quality of the evidence that a person gives which is of the essence, and not the quantity of witnesses called by a party. Thus, the Supreme Court in the case of Takoradi Flour Mills v. Samir Faris (2005-2006) SCGLR 882 at 883 (holding 3) noted that:
A tribunal of fact can decide an issue on the evidence of only one party… Therefore, when a party has named certain persons in his evidence-in-chief, the fact that he did not call all, or any of them though they are available, per se, would not prove fatal to the case of the party. The adjudicator has the whole of the oral evidence of the arty and the documents tendered in evidence, if any, before him to consider for his decision…
The Supreme Court again in the case of Gligah & Atiso v The Republic (2010) SCGLR 870 at 873 (holding 5) made the following statement:
... in establishing the standard of proof required in a civil or criminal trial, it was not the quantity of witnesses that a party who had the burden of proof, called to testify, that was important; but the quality of the witnesses called and whether at the end of the day the witnesses called by the party had succeeded in proving the ingredients required in a particular case. In other words, the evidence led must meet the standard of proof required in a particular case. If it did, then it would be a surplusage to call additional witnesses to repeat virtually the same point or seek to corroborate evidence that had already been corroborated.
In the present case, the court is of the view that since PW1 and Charles Amoako both signed and or observed the execution of exhibit ‘A’, their evidence would not have been materially different. The court has accepted the oral evidence of PW1 as credible and therefore the Plaintiff’s decision not to call Charles Amoakoh as a witness is not fatal to his case. The Plaintiff is alleging the existence of a loan agreement between him and the Defendant. He must prove that there was an offer and acceptance of money to be advanced to the Defendant; that the money was actually advanced to the Defendant and terms of repayment, such as interest and duration agreed upon, from which the liabilities of the Defendant can be inferred. The Plaintiff, through his attorney, and PW1 have given credible and cogent evidence to that effect.
At this point, the burden of persuasion shifts onto the Defendant. He is required to introduce cogent and reliable evidence to displace the evidence adduced by the Plaintiff through his attorney. The defendant gave evidence in person, he did not call any witness. He testified as follows (paragraphs 3 to 9 of the Defendant’s witness statement):
I took a loan of USD 8000 (Eight thousand Dollars) from the Plaintiff. I took this money for the establishment of a Sawmill Business. The Plaintiff equally expressed his interest in the business which made him advance the money to me with the idea that, if profit is made out of it, he can also take his share. The Plaintiff after expressing his interest told me that he had some money lying down and he does not know what to use it for but if he can invest same in the Sawmill Business. I agreed with the Plaintiff to join me in running the business. The Plaintiff joining the business gave me the money and drafted a document which we all executed, exhibit ‘1’. The land on which the Sawmill machine stood came under litigation and we lost everything. Due to this litigation the business folded up.
It is reasonable to infer from the evidence of the Defendant that he has conceded that he took a loan of $8000 from the Plaintiff, as can be seen in his exhibit ‘1’, which is the same document as the Plaintiff’s exhibit ‘A’.
Apart from the Defendant’s admission that he took a loan of $8000.00 from the Plaintiff, the portion of his evidence-in-chief quoted above is a complete departure from his pleadings. In other words, nothing was said in the Defendant’s pleadings about a sawmill business which the parties embarked on with a view to sharing any profit that may accrue, and which formed the basis of the money advanced to the Defendant.
Generally, a party’s pleadings must accord with his evidence on oath. The consequences of a departure from a party’s pleadings have been discussed in a plethora of cases. In Yaa Semanhyia & Ors v. Elizabeth Bih & Ors (2006) 5 M.L.R.G. 184 at 195, Dotse JA (as he then was) stated that:
It is an acceptable practice that whichever party sets up an entirely different case from that which has been pleaded must fail and/or bear the consequences. The Court of Appeal per Mensah Boison J.A. also held in Appiah v. Takyi (1982-83) 1 GLR 1 at page 7 that:
Where there is a departure from pleadings at trial by one party whereas the other’s evidence accords with his pleadings, the latter’s is, as a rule, preferable.
So, the introduction of evidence that had not been pleaded which has substantially changed the nature of the defence with regards to the issues under consideration makes the defendant’s version of the rival accounts very doubtful. Even though the Plaintiff, through his attorney, admitted in cross-examination that at the point of documenting the agreement, the Defendant mentioned casually that he was going to invest in timber, there is no reliable evidence that the Plaintiff specifically gave him the $ 8000 to be used for a Sawmill business and for the parties to share any profit accruing therefrom. Indeed, the purpose for which the loan was given to the Defendant is apparent on exhibit ‘A’. Put differently, Exhibit ‘A’ shows the true intention of the parties to the agreement, that is, the Plaintiff advanced money to the Defendant, and the Defendant was to repay the money together with interest at an agreed period. There is no ambiguity about the intentions of the parties which can be easily ascertained from exhibit ‘A’. Even if the Defendant had pleaded the fact that the parties intended to use the money advanced to him by the Plaintiff for a sawmill business and share the profit, the evidence in support of that assertion would have fallen outside the true intentions of the parties as ascertained from exhibit ‘A’, the loan agreement. The admission of such evidence would offend the extrinsic evidence rule. This rule of evidence was explained by the Supreme Court in Motor Parts Trading Co v. Nunoo (1962) 2 GLR 195 (holdings 1 & 2) that:
(1) when a transaction has been reduced into or recorded in writing by agreement of the parties, extrinsic evidence is in general inadmissible to contradict, vary, add to or subtract from the terms of the document.
Also, in DUA V. AFRIYIE (1971) 1 GLR 260, the court explained the rule as follows:
when a transaction has been reduced to or recorded in writing, either by requirement of law, or agreement of the parties, extrinsic evidence is, in general, inadmissible to contradict, vary, add to or subtract from the terms of the document.
The court however noted that this rule is subject to exceptions. The court’s observation in the Afriyie v. Dua case was that:
One such exception noted at p. 731, para. 1798 of Phipson on Evidence (10th ed.) is: “Extrinsic evidence is admissible to prove any matter which by substantive law affects the validity of a document or entitles a party to any relief in respect thereof, notwithstanding that such evidence tends to vary, add to or, in some cases, contradict the writing . . .
And, in the Motor Parts Trading Co v. Nunoo Case referred to above, their Lordships pointed out fraud as one of the exceptions to the extrinsic evidence rule. In the more recent case of Attieh & Ors v. KOGLEX (GH) LTD & Anor (2001-2002) SCGLR 936, the court explained the extrinsic evidence rule and when to consider the exceptions to the rule as follows:
There are exceptions to the principle that if there be a contract which had been reduced into writing, verbal evidence is not to be allowed to be given of what passed between the parties, either before the written instrument was made or during the time it was made in a state of preparation, so as to add to or subtract from or in any manner to vary or qualify the written document. However, the exceptions to the principle are founded on public policy grounds…
The Defendant before this court has not demonstrated any ground for the court to consider admitting any extrinsic evidence to contradict or vary the content of exhibit ‘A’. In effect, the parties to the document are bound by what they expressly agreed upon. In any case, the obligation of a party to repay money given to him under a loan agreement is not dependent on the purpose for which the money was to be used. The case Barclays Bank (Ghana) Limited v. Sakari (1997-98) 1 SCGLR 639 readily comes to mind. Even though that case involved an agreement between an individual and a financial institution, the reasoning is also applicable to a loan agreement between two individuals, such as the case before this court. At page 646 of the report, Acquah JSC (as he then was), stated:
Now, what is the obligation created under this loan contract, a breach of which would entitle the other to sue? The obligation of the bank was to advance the money, which it did, and that of the Defendant was to repay the loan together with interest, if any. This is the obligation of the parties under this loan contract, and indeed almost all loan contracts. When a bank lends money to its customer, the obligation of the customer is to repay the loan. If the loan is sought for, let us say, a business venture, and the business flops, resulting in massive financial loss to the customer, this misfortune, though may be due to no fault of this customer, does not change the nature of the obligation of the customer to repay the loan he contracted for. He will still be obliged to fulfil his obligation. Thus, the obligation of the borrower in a loan contract, as opposed to other types of contracts, is to repay the loan and not the performance of the purpose for which the loan was sought.
Mindful of his obligations under exhibit ‘A’, the Defendant testified that he has refunded the sum of $ 2000 to the Plaintiff. However, his evidence that payment of the said amount discharged him from further obligations under the agreement was denied by the Plaintiff and the Defendant could not introduce any further convincing evidence. So, by the preponderance of the evidence on record, the Plaintiff has succeeded in proving that he loaned an amount of $ 8,000.00 to the Defendant as per exhibit ‘A’, and the Defendant has only repaid only $2000.00.
ISSUES OF WHETHER THE DEFENDANT USED HIS CREDIT CARD TO PURCHASE A RETURN AIRLINE TICKET TO LONDON FOR THE PLAINTIFF AT A COST OF $ 1,200.00 AT AN INTEREST RATE OF 9% PER MONTH.
These are the third and 4th issues for trial and the basis of the Defendant’s counterclaim. By the principles of proof in civil suits, these assertions must be proved by the Defendant for his counterclaims to succeed. As rightly submitted by counsel for the Plaintiff in his closing address, the Defendant is required to introduce evidence on the balance of probabilities that his assertions, which have been denied by the Plaintiff, are true.
In Majolagbe v. Larbi (1959) GLR 190, the court explained the principle of proof in civil suits as follows:
Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way ,eg, by producing documents, description of things, reference to other facts, instances, or circumstances, 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 on oath by his witnesses. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true.
Kpegah (JA) as he then was also expounded this principle in the case of Zabrama v. Segbedzie (1991)
2 GLR 221 thus:
The correct proposition is that, a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.
This principle has also been followed in cases such as Yorkwa v Duah (1992/93) GBR 278; Adwubeng v Domfeh (1996/97) SCGLR 660; Takoradi Floor Mills v Samir Faris (2005/06) SCGLR 882; Yaa Kwesi v Arhin Davis (2007/08) SCGLR 580; Sarkodie v FKA Co. Ltd. (2009) SCGLR 65 holding 1 and Abbey v Antwi (2010) SCGLR 17 at 19 (holding 2). It is only after the Defendant has successfully discharged the burden of persuasion that the Plaintiff will assume the burden to introduce evidence to the contrary. If the Defendant fails, the burden of persuasion on these issues will not shift onto the Plaintiff in terms of sections 10 and 17 of NRCD 323. What evidence has the Defendant produced in this court? The Defendant in his evidence-in-chief merely stated that he bought an airline ticket for the Plaintiff to meet his wife in London, and this has since attracted interest of over $ 8000. He did not say anything about the allegation in his statement of defence that the interest exigible on the credit card bill was 9% per month. He did not also state in his evidence-in-chief that he has since settled this credit card bill as alleged in his statement of defence. The document, exhibit 3, purportedly written by an ex-wife of the Plaintiff to the effect that the defendant bought an airline ticket for the Plaintiff amounts to an inadmissible hearsay in terms of sections 117 and 118 of the Evidence Act, 1975 NRCD. This document was purportedly made on 25/05/2017 during the pendency of this suit, there has been no suggestion that the maker of that document is unavailable as a witness, or cannot be compelled to appear in court to be cross-examined on that document. The admission of exhibit ‘3’ offended the hearsay rule under section 117 of the Evidence Act, 1975 NRCD 323. Exhibit ‘3’ does not also fall under any of the exceptions to the hearsay rule under section 118 of NRCD 323. Therefore, that document should not have been admitted in evidence at all. On record, counsel for the Plaintiff did not object to the tendering of exhibit ‘3’ on any ground. That notwithstanding, the court has power to exclude it from the evidence under section 8 of NRCD 323. It states:
8. Exclusion of evidence
Evidence that would be inadmissible if objected to by a party may be excluded by the Court on its own motion.
On this basis, the court excludes the Defendant’s exhibit ‘3’ from the evidence before this court. The oral evidence of the defendant in support of the purchase of an airline ticket worth $ 1200 with an undisclosed credit card, which has allegedly attracted interest of $ 8000 is very doubtful. According to the Defendant, this transaction took place sometime in 1993 and interest was accruing over the years. If the Plaintiff had not instituted this action, would the Defendant have ever made any such claim against the Plaintiff? From the circumstances of this case, even if the Defendant had purchased any ticket at all for the Plaintiff as far back as 1993, there was no intention to create legal relations between them. Else, the Defendant would have taken steps to claim this money from the Plaintiff years ago. The Defendant’s assertions relating to the purchase of an airline ticket with a credit card and the applicable interest are facts which can be proved positively. The best form of proof in the circumstances of this case would be documentary evidence relating to the transactions. Did the Defendant possess a credit card in the first place? If he did, what was the name of the credit card? or which legal entity issued it to him? If he possessed a credit card and had used the same to purchase an airline ticket, the credit card Company would have sent him a statement or a bill at the end of the credit period requesting him to settle his indebtedness, several demand notices would have been sent to him as well upon default. The fact of purchase of an airline ticket would have also appeared as an item on the bill with due particulars. No such documentary evidence has been tendered by the Defendant, and his oral evidence which has been discredited in cross-examination is not reliable.
Upon a careful consideration of the evidence adduced by the parties, the court concludes that the Defendant has failed to prove that he in fact purchased any return airline ticket to London for the Plaintiff.
WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO HIS CLAIM.
According to the Plaintiff, the Defendant has over the years been pleading for more time to repay the outstanding balance of the loan and he obliged him, until August 2014, when it became obvious that the Defendant did not intend to pay the loan. He told the court that in 2014, his mother died unexpectedly, he came to Ghana to perform the funeral but was financially challenged, and when he made a demand on the Defendant to repay the outstanding balance of the loan, he failed to do so. From the evidence before this court, the Plaintiff is entitled to recover the outstanding balance of the loan in the sum of $6000 form the Defendant. However, the agreement to pay interest of GHC 1200.00 every three months was for a period of one year only, it lapsed on 31st May, 2017 and the Plaintiff also slept on his rights. Irrespective of that, the obligation of the Defendant to repay the loan persisted. So, is the Plaintiff still entitled to interest, and at what rate?
The basis for the award of interest was explained in Akoto v.Gyamfi-Addo (2005-2006) SCGLR 1018 (holding 1) that:
The general principle for the award of interest to a party was that such a party had been unjustifiably kept out of money due to him or her for the relevant period…
This reasoning of the Supreme Court is in line with the statement of Denning MR in the case of
Harbutt’s Plasticin Ltd v. Wayne Tank & Pump co. Ltd (1970) 1 All ER 225 at 236 that:
The basis of an award of interest is that the Defendant has kept the Plaintiff out of his money; and the Defendant has had the use of it himself so he ought to compensate the Plaintiff accordingly.
It is to be noted that the Plaintiff has sued for a recovery of the $6000 or its cedi equivalent. The applicable interest rate will be the Bank of Ghana dollar lending rate and not the prevailing bank rate. This was explained by the Supreme Court in the case of NIB Ltd v. Silver Peak Ltd. (2003-2004) SCGLR 1008. This was what the Supreme Court said:
From the narration of the facts of the instant case, the obligation of the appellant was calculated in dollars, but the learned trial judge also made reference to the cedi equivalent of that dollar amount. That reference to the cedi equivalent does not justify his next step in applying the cedi interest rate to an obligation he had calculated in dollars. Thus, the fact that a foreign currency debt is discharged through the payment of the cedi equivalent by a Ghana resident, as such resident is obligated by law to do, does not change the nature of the underlying foreign currency debt and the fact that the appropriate interest rate which should attach to it is the usual interest rate commercially applicable to that currency. The mere fact of the payment in Cedis should not change the applicable interest rate.
At page 1013 of the report, the court explained the rationale for this principle as follows:
It makes commercial sense for a dollar debt to attract a dollar interest rate because the interest rate (influenced by the rate set by the Federal Reserve Board) reflects the macroeconomic conditions of the United States, which determine the dollar-dominated debts worldwide. Similarly, it makes commercial sense for a cedi debt to attract a cedi interest rate since that interest rate reflects Ghanaian macroeconomic conditions (including, for instance, the rate of depreciation of the cedi against the leading foreign currencies and high interest rates). Thus, if a cedi interest rate is applied to a dollar obligation, the oblige (that is, the creditor) will be overcompensated because the cedi rate, which necessarily reflects the high inflation rates in Ghana, will be applied to a dollar obligation which has not been subjected to high inflation.
So, on the basis of the foregoing, the Plaintiff is entitled to interest at the Bank of Ghana dollar lending rate on the cedi equivalent of the outstanding balance of the loan in the sum of $6000.00. It will be unconscionable to order the Defendant to pay interest from the year 2007 because the Plaintiff slept on his rights until August, 2014. Therefore, the interest will run from August, 2014, till date of final payment.
WHETHER OR NOT THE DEFENDANT IS ENTITILED TO HIS COUNTERCLAIM.
These are the reliefs sought by the defendant in his counterclaim:
An order from this Honourable Court compelling the Defendant to pay the total sum of $11,976.00 same being the total sums of monies emanating from the purchase of airline ticket and financial assistance given to the Plaintiff.
Interest on the said total sums of money at the prevailing bank rate from the year 2000 till date of final payment.
The Defendant based his counterclaim on the averments contained in his statement of defence. His allegation that in the past he gave a financial assistance of $30,000.00 to the plaintiff out of which he has repaid GHC 27,000.00 leaving a balance of $ 3,000.00 has not been proved. He led no evidence at all on this per his witness statement filed on 10/01/18. However, whilst under cross-examination on 29/03/18, the Defendant said sometime in the year 1997, he sent an amount of $28,000.00 from Canada to the Plaintiff for the importation of half a container of Agricultural products from South Africa, he told the court that this money was a loan, which the Plaintiff refused to pay. This piece of evidence contradicts his averment that he gave a financial assistance of $30,000.00 to the Plaintiff which he paid leaving a balance of $3000.00.At the trial, the Plaintiff, through his attorney explained away the circumstances under which exhibit ‘2’ was issued. On 12/03/18, the following transpired under cross-examination between the Plaintiff’s attorney and counsel for the Defendant:
Q: Are you aware that on 30/04/1998, Sampson issued a cheque of eight million cedis and this cheque was issued by SANDI MORE Limited signed by the Managing Director and same was dishonoured?
A: Yes, my lord we were doing business under the name Sandi More Ltd and that cheque was issued for a customer and not Andy Appiah. Andy Appiah was in charge of the business but the cheque was dishonoured and I later paid the customer in cash.
Q: I suggest to you that, the last answer is not correct because Andy Appiah supplied chemicals to SANDI MORE Limited-Agro and Health Services that was why Sampson issued the cheque to be drawn by Andy?
A: That is not correct. What I remember about the Agro Chemicals dealing was that Andy Appiah imported some Agro Chemicals worth USD 20,000.00 from Japan through my company, we sold them and realized USD 28,000.00 and gave all the money to Andy Appiah.
Q: You are not being truthful, Sampson only paid USD 20,000, leaving a balance of USD 8,000 being the profit for which you issued a cheque of Eight Thousand cedis as part of Andy’s share of the profit out of the USD 8000?
A: That is not correct. I paid all his money to him six years before he took the loan from me. If I was indebted to him, he would have asked for his money instead of taking a loan from me.
The last bit of the Plaintiff’s attorneys answer is indeed a reasonable position. If indeed the Plaintiff was indebted to the Defendant, it was reasonable to expect the Defendant to demand repayment of the debt, instead of taking a loan from the Plaintiff. This story of the Defendant is obviously an afterthought. The Plaintiff has satisfied the mind of the court that at the time that he loaned money to the Defendant in the year 2006, he did not owe the Defendant. The court finds from the evidence that there was a transaction between the Defendant and SANDI MORE Ltd but all issues pertaining to that transaction have been settled and there is nothing outstanding for the Defendant to found his claim on. Even if there was any outstanding claim, the Defendant’s cause of action would have been against SANDI MORE Ltd and not the Plaintiff herein, based on the principle of separate legal existence of incorporated companies. This principle has been adequately discussed in Morkor v Kuma (1998-99) SCGLR 620 which followed the decision in Salomon v Salomon (1897) AC 22, HL.
The court has already found that the Defendant’s claim of purchase of an airline ticket with his credit card which attracted interest of 9% per month is not supported by his evidence on record. On the basis of the foregoing, the reliefs sought by the Defendant in his counterclaim cannot be granted for lack of credible evidence. Accordingly, judgment is entered against the Defendant in favour of the Plaintiff in the cedi equivalent of USD 6,000.00, and interest thereon at the Bank of Ghana Dollar lending rate from August 2014, till date of final payment. Due to the relationship between the parties, the court awards cost of GHC 2,000.00 against the Defendant in favour of the Plaintiff.