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IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(GENERAL JURISDICTION DIVISION)
ACCRA - A.D 2019
AKUA SERWAH DEBRAH - (Plaintiff)
RITA AKORFA - (Defendant)
DATE: 27TH JULY, 2019
SUIT NO: GJ/736/2017
JUDGES: HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO
LAWYERS:
MR. SAMMANI ZACHARY WITH NANA ADOMA DUFFOUR FOR THE PLAINTIFF
MR. MAXWELL KOLOG H/B OF ANTHONY NAMOO FOR THE DEFENDANT
JUDGEMENT
Introduction:
(1) Per an Amended Writ of Summons sealed in this registry on July 13, 2017 the Plaintiff claimed against the Defendant the following reliefs:-
1. An order for the recovery the sum of Seven Hundred and Sixty-One Thousand and Fifty-Three Ghana (GH¢761,053.00) as at 16th December, 2016.
2. Interest on the said sum in (a) above at the prevailing commercial bank rate from 17 December 2016 to date of full and final payment.
3. Such other reliefs(s) as this Court deems fit.
4. Costs on full indemnity basis.
(2) The claim of the Plaintiff was met with a statement of defence by the Defendant in which the Plaintiff’s claim was vehemently denied. The Defendant filed a Statement of Defence and Counterclaim on June 29, 2017. The Plaintiff filed a Reply and Defence to the Counterclaim on August 2, 2017.
Background:
(3) In part, the Amended Statement of Claim provides as follows:
3. The Plaintiff says that sometime in 2016, the Company supplied the Plaintiff (sic) with products worth One Million Ghana Cedis (GH¢1,000,000.00) which was stored at the shop in Kasoa and was authorized by the Plaintiff to sell same to retailers.
4. Plaintiff avers that by April, 2016 the Defendant sold the products to retailers and received proceeds of the sale, however she failed and/or refused to account for the sum of Six Hundred and Ten Thousand, Six Hundred and Fifty-Four Ghana (GH¢610,654.00).
6. Plaintiff says Defendant admitted liability for the non-payment of the sum of Six Hundred and Ten Thousand, Six Hundred and Fifty-Four Ghana (GH¢610,654.00) and promised to repay by the end of 2016 but has since failed to do so.
7. Plaintiff repeats the preceding paragraph and adds that the Defendant pleaded with Plaintiff to pay by installment and issued the Plaintiff with a cheque numbered 000045 dated 28th February, 2017 with the amount of One Hundred Thousand Ghana Cedis (GH¢100,000.00) which was subsequently refused by the Defendant’s Bank on presentation and the Plaintiff subsequently reported Defendant’s conduct to the Police for criminal prosecution.
8. Plaintiff avers that despite Defendant’s admission of liability and refusal to pay back the debt notwithstanding several demands made on her by the Plaintiff, Defendant has refused and/or failed to pay back the sale proceeds as pleaded in paragraph 6 above and her failure and/or refusal risks putting the Plaintiff out of business.
(4) According to the Plaintiffs, it is suffering irreparable financial losses due to the delay of the Defendant in meeting its obligations. It therefore prayed the Court to grant the reliefs endorsed on the writ of summons.
(5) On June 29, 2010, the Defendant filed her Statement of Defence and Counterclaim to the Plaintiffs’ action. In part, that Statement of Defence and Counterclaim provides as follows:
3. The Defendant in response to paragraph 3 of the Statement of Claim states that she started dealing with the Plaintiff in June, 2015 in the course of which all supplies made to the Defendant were duly paid for.
4. In January 2016, the Plaintiff started supplying the Defendant goods on credit so that the Defendant could supply same products on credit to retailers for payments to be effected within a month.
5. Thus between January and September, 2016 (excluding the month of July, 2016), the Plaintiff supplied Onga products worth GH¢2,728,505.01 to the Defendant during the relevant period.
6. According to the Defendant, she made both cash and cheques payments to the Plaintiff all amounting to around GH¢2,324,287.10 during the period under consideration.
7. It was the practice of the parties that the Plaintiff who is also known as Atta would receive mostly cash from the Defendant at the Plaintiff’s shop at Okaishie and same recorded in a book kept by the Defendant.
8. It is also the Defendant’s case that on two occasions, one Red who also works with the Plaintiff collected an amount of GH¢50,000.00 on 13/04/2016 and GH¢48,000.00 on 22/06/2016 from the Defendant at Agbogboloshie and Madina Zongo Junction respectively for and on behalf of the Plaintiff.
9. In October, 2016, the Defendant returned goods worth GH¢244,947.50 to the Plaintiff through a mutual driver called Joe.
10. When the payments and goods returned are added, the total amount paid to the Plaintiff is GH¢2,569.234.50.
11. The Defendant denies paragraphs 4, 5 and 6 of the Statement of Claim and states that the only amount owed to the Plaintiff is an amount of GH¢159,369.50 being cost of products supplied to retailers on credit at Agbogbloshie and Tamale which payments the Defendants is yet to receive and pay same to the Plaintiff.
12. In reply to paragraph 7 and 8 of the Statement of Claim, the Defendant states that she had a firm assurance that the customers who owe her the GH¢159,369.50 would pay the amount of GH¢100,000.00 into her account.
13. In view of that undertaking by her customers, the Defendant issued the cheque with a phase value of GH¢100,000.00 to the Plaintiff.
17. The Defendant contends that the amount outstanding of GH¢159,369.50 should be recorded from September 2016 but not April, 2016 as the goods supplied in April, 2016 had long been paid for and the amount outstanding of GH¢159,369.50 from September, 2016, suppliers which was the last in time.
18. The Defendant maintains that the Plaintiff is not entitled to the amount of GH¢610,654.00 from April, 2016 but GH¢159,369.50 from computed from September, 2016.
19. It was agreed between the Plaintiff and the Defendant that the latter be entitled to a commission of GH¢10,000.00 per month which the former failed to pay since January, 2016.
20. The Defendant shall contend that she is entitled to an amount of GH¢80,000.00 from the Plaintiff.
(6) Based on all of the above, the Defendant then counterclaimed as follows:
a. Recovery of an amount of Eighty Thousand Ghana Cedis (GH¢80,000.00) from the Plaintiff being commission for Eight (8) months which the Plaintiff has failed to pay the Defendant despite repeated and persistent demands.
b. Cost
Issues for Trial
(7) At the close of the pleadings the issues contained in the Applications for Directions filed by the Plaintiff and adopted by the court for trial were:-
a. Whether or not the Plaintiff sometime in 2016 provided Onga products worth over GH¢1,000,000.00 to the Defendant to sell.
b. Whether or not the Defendant had sold the said products as at 16th December 2016.
c. Whether or not the Defendant admitted liability of her indebtedness to Plaintiff and promised to repay by the end of 2016.
d. Whether or not the Defendant issued a dud cheques of One Hundred Thousand Ghana Cedis (GH¢1,000,000.00) to the Plaintiff towards the partial settlement of her indebtedness.
e. Whether or not the Plaintiff agreed to pay an unconditional flat rate commission of GH¢10,000.00 per month to the Defendant.
f. Any other issues arising from the pleadings and the evidence.
The Evidence Received by Court:
(8) The Plaintiff testified by herself and also called her brother, Samuel Frimpong Boadi the Plaintiff Sales Representative/Accounts Officer. The witnesses gave evidence in terms of the statement of claim and the witness statements filed. Ms. Akua Serwaa Debrah told the Court that she is a businesswomen trading under the name Steph Jay Ventures. She also said she is a distributor of Onga products and she obtains her supplies on credit from Promisador Ghana Limited for distribution to retailers.
(9) Ms. Debrah said sometime in 2016, Promisador Ghana Limited supplied her with Onga products worth over One Million Ghana Cedis (GH¢1,000,000.00) and she stored the products at her shop in Kasoa in order to sell the products to retailers as authorized by the company. The Plaintiff said she made the Defendant her sales representative and put her in charge of her shop at Kasoa to sell the products to retailers. She also said she agreed to pay the Defendant commission of 2% on the sales she made provided payment of the proceeds of the sales was made timeously without default commencing January 2016. According to the Plaintiff the Defendant failed to make the monthly payments on time in order to earn the commission on the sales she made as agreed.
(10) The Plaintiff further told the Court that the Defendant sold the goods but failed to make full monthly payment for the goods supplied to her from January to June 2016 and by the end of September, the outstanding amount unpaid on the goods supplied was One Million, One Hundred and Sixty-Three, One Hundred and Seventy-Seven Cedis (GH¢1,163,177). The Plaintiff further said “on the 5th and 7th September, 2017 when the Defendant made payments of GH¢33,000.00 and GH¢70,000.00 respectively, the Defendant signed confirming that she had an outstanding amount of GH¢814,775.00 and GH¢747,775 unpaid on the respective dates”.
(11) The Plaintiff’s further testimony was that “due to the Defendant’s inability to make payment for the goods supplied to her in the manner agreed, I stopped supplying goods to her and the last supply I made to the Defendant was on 30th September, 2016”. She said “on the 3rd of November, 2016, I together with my records keeper retrieved goods worth Two Hundred and Seventy Four Thousand, One Hundred and Twenty Four Cedis (GH¢274,124) from the shop at Kasoa and this amount was deducted from the outstanding amount which was One Million, One Hundred and Sixty Three Thousand, One Hundred and Seventy Seven Cedis (GH¢1,163,177) at the time leaving a balance of Eight Hundred and Eight Nine Thousand, Fifty Three Cedis (GH¢889,053)”.
(12) The Plaintiff further testified that the Defendant later made payment of Twenty Eight Thousand (GH¢28,000) on 18th November, 2016 and issued a cheque of One Hundred Thousand Cedis (GH¢100,000) on 16th December 2016. According to the Plaintiff, the Defendant’s indebtedness as a result was reduced to Seven Hundred and Sixty one Thousand and Fifty Three Cedis (GH¢761,053). The Plaintiff tendered as Exhibit “C” a copy of what she claim to be the record of transaction. The Plaintiff further testified that the “Defendant intimated to me sometime in August, 2016 that some of her Clients refused to pay for the goods supplied and I requested that she provide a list of debtors but she named only few of them. I enquired from the said persons she claimed were owing her but the retailers she named denied owing her. In fact, all of them confirmed that they had paid all monies they owed to the Defendant”.
(13) The Plaintiff further said “the Defendant pleaded with me to allow her to pay the outstanding debt by instalment and issued me with a cheque numbered 000045 dated 28th February, 2017 with the amount of One Hundred Thousand Ghana Cedis (GH¢100,000)” but the cheque was dishonoured by the Defendant’s bank. She also said she reported the Defendant’s conduct to the Police for Criminal prosecution. A copy of the dishonoured cheque was tendered at trial and marked as “Exhibit A”. The Plaintiff said “the Defendant admitted amongst others liability for the amount being claimed in this suit at the Police station”.
(14) According to the Plaintiff it was clear that as at December, 2016 the Defendant had sold all the products to the retailers and received proceeds of the sales but she failed and/or refused to account for the sum of Seven Hundred and Sixty-One Thousand and Fifty-Three Ghana Cedis (GH¢761,053.00). The Plaintiff further said the Defendant admitted liability for the non-payment of the sum of GH¢761,053.00 and promised to pay by the end of 2016 but did not follow through with the promise. Ms. Serwaa Debrah further said the Defendant’s failure and /or refusal to pay the proceeds of the sale has jeopardized her business relationship with the Promisador Company since she was unable to settle her indebtedness to them. She therefore prayed the Court to grant her reliefs.
Samuel Frimpong Boadi:
(15) The Plaintiff next called Samuel Frimpong Boadi as a witness. He told the Court that the Plaintiff started doing business with the Defendant sometime in January 2016. According to Mr. Frimpong Boadi the “Plaintiff supplied goods to the Defendant who sold the goods and made monthly installment payments for the goods supplied to her until sometime in August 2016 when the Defendant started defaulting in making payments for the goods.
(16) The witness said before “we started recording our transactions on a computer, the Defendant made payments of GH¢33,000.00 and GH¢70,000.00 on the 5th and 7th of September, 2017 respectively and signed against the then outstanding amount of GH¢814,775.00 and GH¢747,775 on the respective dates”. The witness said due to the Defendant’s inability to make payments for the goods supplied to her, the Plaintiff stopped supplying goods to her and the last supply she made to the Defendant was on 30th September, 2016”.
(17) Mr. Frimpong Boadi further testified that “the Defendant was unable to make payments for the goods supplied so on 3rd November, 2016, we retrieved goods worth GH¢274,124 from the shop at Kasoa and we deducted the amount of goods retrieved from the outstanding amount which was GH¢1,163,177 at the time leaving a balance of GH¢889,053. A document which according to the witness was the record of the transaction with the Defendant was tendered as Exhibit “B” at trial. According to the witness, the Defendant afterwards made payment of GH¢28,000 on 18th November, 2016 and issued a cheques of GH¢100,000 on 16th of December 2016 which brought the Defendant’s indebtedness to GH¢761,053.
(18) The further evidence of the witness was that the Defendant pleaded with the Plaintiff to allow her to pay by installment and issued a cheques numbered 000045 dated 28th February, 2017 with the amount of GH¢100,000 but the cheque was dishonoured by the Defendant’s Bank on presentation and the Plaintiff reported the Defendant’s conduct to the Police for criminal prosecution.
(19) According to Mr. Frimpong Boadi from the records, “it is clear that as at December, 2016 the Defendant had sold all the products to the retailer and received proceeds of the sale, however she failed and / or refused to account for the sum of GH¢761,053.00”. He also said, the Defendant has since not made any effort to settle the outstanding amount of GH¢761,053. Mr. Frimpong Boadi implored the Court to enter judgment in favour of the Plaintiff and grant the reliefs endorsed on the writ of summons.
The Defendants’ Case:
(20) The Defendant testified in her own defence. Her evidence was in line with both the Statement of Defence filed and the Witness Statement as well. According to Ms. Akorfa sometime in June 2015, she entered into an agreement with the Plaintiff for the supply of Onga product. She said all supplies made to her in the year 2015 by the Plaintiff were fully paid for. She further testified that in “January 2016, the Plaintiff started supplying me goods on credit so that I could do onward supply to retailers on credit for payment to be effected within a month”. Ms. Akorfa said “between January and September except July, goods supplied to me by the Plaintiff was worth GH¢2,728,505.01. The invoices of goods supplied within the relevant period are attached and marked as “Exhibits “1”, “A1”, “B1”, “1C” “1D” “1E” “1F” “1G”.
(21) Ms. Akorfa told the Court that “it was the practice that the Plaintiff mostly received cash from me at her shop at Okaishie. It was also the practice that we recorded monies paid in our individual note books. The extract of the note book of records is attached and marked as “Exhibit 2”. She also said between the period of January 2016 to January 2017 she made payments amounting to GH¢2,324,287.10.
(22) The Defendant further said on two occasions, “I was unable to go to the Plaintiff’s shop, and she asked me to give the money to one of her workers by name Red. An amount of GH¢50,000.00 on 13/04/2016 and GH¢48, 00.00 on 22/06/2016 were paid to the said Red at Agbogboloshie and Medina Zongo Junction respectively. In November 2016, I paid to the Plaintiff at her shop in Okaishie an amount of GH¢28,000.00 by cash”.
(23) The Defendant further said, she issued out to the Plaintiff a cheque of GH¢40.000 on 20/12/16 and another GH¢60,000.00 was also paid on 5/01/2017. According to Ms. Akorfa the cheques issued were numbered 000008 and 000007 respectively. The Defendant tendered as “Exhibit 3” her bank statement indicating that the said cheques were cleared when duly presented for payment.
(24) Ms. Akorfa further testified that in October 2016, she returned goods worth GH¢244,947.50 to the Plaintiff through a mutual driver friend called Joe. Based on all of the above according to the Defendant “when the payment made and goods returned are added, the total amount I have paid to the Plaintiff is GH¢2,569.23.50. The only amount owed to the Plaintiff is an amount of GH¢159,369.50 being the cost of product supplied to retailers on credit”.
(25) She also said it was agreed between the Plaintiff and herself, that she would be entitled to a commission of GH¢10,000.00 per month but the Plaintiff has failed to pay till date. As a result, she said she is entitled to an amount of GH¢80,000.00 for the eight months period. She therefore prayed the Court to dismiss the Plaintiff’s claim and grant her counterclaim. In a nutshell this is the evidence the Court heard.
The Court’s Opinion of the Legal Principles & Analysis:
(26) I proceed to evaluate the nature of the evidence adduced at the trial. I shall examine the burden of the parties in this suit and relate same to the facts presented in their respective pleadings and the evidence adduced at the trial, before I make the necessary findings while determining the factual and legal issues set down. The general position of the law on proof is aptly stated by Kpegah J. A. (as he then was) in the case of ZABRAMA VRS. SEGBEDZI (1991) 2 GLR 221 at 246 as follows:
“…a person who makes an averment or assertion, which is denied by his opponent, has a 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 the burden”.
(27) 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”.
The principle of law has received judicial blessing as the Supreme Court pronounced on it in the case of RE: ASHALLEY BOTWE LANDS, ADJETEY AGBOSU & OTHERS v. KOTEY & OTHERS [2003-2004] SCGLR 420. The Court held per Wood JSC (as she then was) at page 444 that:
“It is trite learning that by the statutory provisions of the Evidence Decree, 1975 (NRCD 323) the burden of producing evidence in any given case is not fixed, but shifts from a party to party at various stages of the trial, depending on the issues asserted and or denied.”
(29) Further, Brobbey JSC (as he then was) in the same case reiterated at page 465 that a defendant generally does not carry a burden of proof, because the Plaintiff who took the Defendant to Court has to prove what he claims is entitled to from the Defendant. However, if the court has to make a factual determination of an issue, and that determination depends on evaluation of facts and evidence, the Defendant must realize that the determination cannot be made on nothing. Consequently, in line with the tenets of Section 14 of NRCD 323, a Defendant who wishes to be successful in a matter is required to adduce facts and provide evidence on issues he desires to be held in his favour.
(30) The Supreme Court has also further explained in the case of OKUDZETO ABLAKWA (No. 2) vs. ATTORNEY GENERAL & ANOTHER [2012] 2 SCGLR 845 at 867 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 BANK OF WEST AFRICA LTD vs. ACKUN [1963] 1 GLR 176.
(31) 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”.
Findings of Fact & Evaluation of Evidence:
(32) From the pleadings filed by the parties and after having heard the testimony of the witnesses at trial and the exhibits filed, and, after having read the written submission filed by counsel, I make the following findings of fact having subjected all the evidence on record to critical evaluation and analysis. It is my finding that:
(i) By an agreement between the parties, the Defendant sold goods supplied by the Plaintiff and she was required to pay the Plaintiff after the sales.
(ii) The Defendant defaulted in the payment of some of the goods sold to the Plaintiff. I also find as a fact that the Defendant in an attempt to pay off the outstanding balance issued out a cheque dated February 28, 2017 with the face value of GH¢100,000.00 to the Plaintiff but it was dishonoured by the Defendant’s bank;
(iii) I find as a fact that the Plaintiff lodged a complaint with the police for the arrest of the Defendant for issuing out a cheque which was dishonoured because of insufficient funds. I find as a fact that there is no evidence that the Defendant paid off all of the outstanding balance of the goods sold to the Plaintiff before the institution of this action.
(33) I now come to consider the main issue of controversy between the parties. In my respectful view despite the setting down of many issues, the core issue is how much is the Defendant owing the Plaintiff if at all? According to the Plaintiff per the Amended Writ of Summons, the Defendant is owing her the sum of Seven Hundred and Sixty-One Thousand and Fifty-Three Ghana Cedis (GH¢761,053.00). The Defendant on the other hand says the “only amount owed to the Plaintiff is an amount of GH¢159,369.50 being the cost of products supplied to retailers on credit”.
(34) As stated at paragraph 31 of this judgment the general principle of law is that it is the duty of a Plaintiff to prove what she alleges. And so how did the Plaintiff prove that the amount endorsed on the writ of summons is what is owed by the Defendant. To reiterate, the Plaintiff in her evidence in chief to the Court said that “it was clear that as at December, 2016 the Defendant had sold all the products to the retailers and received proceeds of the sales but she failed and/or refused to account for the sum of Seven Hundred and Sixty-One Thousand and Fifty-Three Ghana Cedis (GH¢761,053.00)”. She also said “the Defendant admitted liability for the non-payment of the sum of GH¢761,053.00 and promised to pay by the end of 2016 but did not follow through with the promise”. But how did the Plaintiff do when her evidence was tested under cross-examination.
(35) This is what transpired when Ms. Serwaa Debrah, the Plaintiff was cross-examined on Tuesday March 5, 2019 by Counsel for the Defendant:
“Q. Per your statement in paragraph 5 again, does it suggest that you are not sure of the amount of goods in which you took to the Kasoa shop.
A. Yes, I would not know the value because it was the Defendant who did the distribution.
Q. You stated under paragraph 8, you said… (Counsel reads). How did you arrive at this value if you are not sure of the amount of goods that was taken to the Kasoa shop?
A. My Lord the payments made by the Defendant was to my brother, I will not be able to explain this.
Q. So, you will agree with me that you have no idea how this amount was arrived at.
A. Yes, my Lord, it is only my brother who can explain.
Q. Under paragraph 9 of your own witness statement, you stated that on the 5th and 7th of September 2017 when the Defendant made payment of …. (Counsel reads). This GH¢33,000 and the GH¢70,000 stated in paragraph 9, under what circumstances were those payments made by the Defendant?
A. My Lord in terms of transaction, this is between the Defendant and my brother. However, the GH¢33,000 and the GH¢70,000 payments made, were part payments of the items supplied.
Q. So you again agree with me that you have no idea of what is stated in paragraph 9.
A. My Lord I have an idea about this but the details here is between the Defendant and my brother.
Q. Who made the order at Promisador for the goods?
A. My Lord, myself.
Q. If you are telling this Court that you made the order for Promisador then you should be able to tell the Court the amount of the order that was taken from Promisador to the shop.
A. I am not able to tell that figure because I have made my brother to be in charge of that aspect of the work.
Q. In what mode does the Defendant make payment to you?
A. My Lord sometimes payment is by cheque and some other times payment is by cash.
Q. Can you tell the Court how many times the Defendant made payment by cheque?
A. My Lord it is my brother who can give such details.
Q. Are you saying that every payments were made to your brother?
A. That is so.
Q. So you did not receive any money from the Defendant personally?
A. That is so my Lord.
Q. The payment of cheque, I believe it was made into an account, whose signature is on that account?
A. My Lord it is my account but everything goes through my brother before it is paid into the account.
Q. I put it to you that based on the account in your evidence, you have no idea of your own witness statement.
A. My Lord I know.
Q. I also put it to you that the amount stated in your witness statement that Defendant owes you is incorrect.
A. My Lord it is correct.
Q. I also put it to you that the Defendant had personally made payments to you on several occasions.
A. My Lord there is not payment made that my brother was not aware, all payments made by the Defendant have been recorded”.
(36) From the above exchange I understood Ms. Serwah Debrah to say that she did not know how the amount she contends as debt and endorsed on the writ of summons was arrived at. According to her only her brother could explain how the figure was arrived at. She also said she did not personally receive payments from the Defendant. The brother the Plaintiff referred to is Mr. Boadi Samuel Frimpong. He testified in support of the Plaintiff’s case that he is a trader and the one who kept records of accounts for the Plaintiff.
(37) This is what he said under cross examination by Defendant’s Counsel on Thursday, March 7,
2019.
“Q. How long have you working with the Plaintiff?
A. I have being working with Plaintiff for the past two years
Q. How many shops does the Plaintiff have?
A. Two shops
Q. Where are the shops located?
A. One of the two shops is located at Okaishie and the other is at Kasoa
Q. So are you in charge of these two shops?
A. Yes my lord
Q. So for clarity, you are the record keeper of both shops, is that correct?
A. Yes my lord…
Q. So before you started recording your transactions on the computer where were you recording your transactions?
A. We were then recording in a book
Q. You stated under paragraph 6 that the Defendant was making monthly payment until somewhere in August 2016 when she defaulted
A. That is so.
Q. So it means that from January to July the Defendant paid her monies monthly which you recorded.
A. Defendant did not start the monthly payment in January.
Q. So when did she start making the payments
A. Defendant started the monthly payment on the 18th of August 2016
Q. Then per your records the Defendant never defaulted
A. It is not true the Defendant never defaulted. The Defendant started the payment in August 2016. This is what is contained in the book
Q. You stated in your own witness statement paragraph 6 that the Defendant sold the goods and made monthly payments until sometime in August when the Defendant started defaulting. You have told this court that some few minutes ago.
A. All the issues started in the month of August and we started recording same in the book in August together with Defendant. Whenever she makes any payment we recorded that in the book. Defendant is aware.
Q. So your statement in paragraph 6 of your witness statement is false.
A. Paragraph 6 of my witness statement is not false. The payments the Defendant was making was not strictly done on monthly basis. Defendant makes payment as at when she gets the money. Sometimes Defendant makes payment within two days interval or one week within the month.
Q. All these payments were made from August going, right?
A. Yes my lord. The payment that we recorded in the book started from August.
Q. So it means that before August all the payments made were not recorded.
A. The payments that Defendant did which I saw and I am aware started in August prior to that Defendant never made any payment that I am aware of.
(38) When the cross-examination continued on Thursday, March 14, 2019 the following further evidence was elicited:
Q. So prior to you recording the payments made by the Defendant, did she make any payment at all that you are aware of?
A. My Lord concerning the payment, the Defendant was dealing with the Plaintiff before I came in. The Plaintiff and the Defendant calculated for 3 months that is May, June and July 2016 and the amount was GH¢1,053,486.80, it was after these 3 months that they started recording.
Q. So it means that from January to June, the Defendant did not owe anything, is that correct?
A. From January, the Defendant did not have any issue with the Plaintiff, the issue started from May, June and July so we started recording from August 2016.
Q. So, from January to May, who received those payments?
A. My Lord it was between the Plaintiff and the Defendant”.
(39) Undoubtedly, the above exchange show that the Plaintiff’s evidence on whether or not the Defendant made payments before August 2016 and who received same is not in sync with her own witness because the witness agreed that some payments were made to the Plaintiff by the Defendant. I also note that the Plaintiff’s record keeper admitted under cross-examination that some of her calculations were repetitive and in effect not accurate. Again the following exchange is crucial to the amount owed by the Defendant:
“Q. If you look at your recording of 14th September both on the handwritten and the typed one, they are the same.
A. They are the same.
Q. If you look at the transaction on 5th September you stated that Defendant made payment of GH¢33,000 so if you deduct that from the payment the Defendant made on the 5th September, you realize that they are the same.
A. Yes, my Lord.
Q. Do you agree with me that if the figure on 1st September is a typing mistake then the deduction also has a problem.
A. I do not agree with you. We have records of all the payments the Defendant made and if you go back and calculate, you will see what she is owing.
Q. The typed transactions that you have stated in Exhibit “B” of your witness statement, I believe these transactions are what the Defendant owes from May, June and July. Is that correct?
A. Yes, my Lord….
Q. What was the value of goods you supplied to the Defendant in September?
A. My Lord it was GH¢271,784.10.
Q. So if you add what you supplied to the Defendant in September and you add what she owes in September you will not get what you have stated there.
A. Yes my Lord, she is owing for the month of August which is GH¢471,823.95 and also for the month of September i.e. 271,784.10 and with the months of May, June and July, the Defendant has paid and she is left with a balance of GH¢419,570 to pay.
Q. There is nothing in your records that shows that the figure GH¢471,823.95 is for August.
A. The original invoice is with the Defendant she can bring it to Court for me to verify but we have a photocopy with the company.
Q. To prove your case in Court for somebody who owes you, do you not think that it will be prudent for you to add those invoices?
A. The photocopy invoice I am talking about is with the company that supplies us with the goods but the original invoice is with the Defendant.
Q. You are still in business with the company, right?
A. No, my Lord, the money belongs to the company and since they were not getting these monies from us, they stopped supplying us with goods.
Q. So how come you were able to provide invoices for the rest of the transaction.
A. We were able to supply these invoices because any time it is ready, it is given to the Plaintiff for her to sign and also for the Defendant to sign before it is given to the Defendant to take it away, that is how come we got the invoices for August and September’.
(40) The answers provided in the above exchange were in sharp conflict with the Plaintiff’s pleadings and the witness statement filed in which the Plaintiff claimed that the debt owed by the Defendant is GH¢761,053.00. It is a settled rule of law that where there is a departure from pleadings at a trial by a party whereas the other’s evidence accorded with his pleadings, the latter’s is preferable. See: TAKYI v APPIAH (1982-83) 1 GLR 1 C/A.
(41) I wish to state that in my respectful opinion, the exhibits tendered by the Plaintiff at trial to establish on the balance of probabilities her claim in terms of the sums endorsed on the writ also did not meet the evidentiary standard? In my view, while I have no problem relying on Exhibit “A” being the cheque which was issued by the Defendant but was dishonoured to assess the indebtedness of the Defendant in so far as the amount endorsed on that cheque is concerned, I have difficulty accepting Exhibits “B” and “C” in assessing the Plaintiff’s claim. The manner of preparation of the two exhibits weaken their probative value as a document which this Court should accept as relevant and reliable. There is no indication as to who prepared Exhibit “B” as there are no signatures and Exhibit “C” as well has no signature except the ones with figures the Defendant signed against but subequently contests. I am of the view that the exhibits fail to meet the acceptable legal threshold and reliability for same to be accepted by this Court as the Defendant contests same.
(42) Now, to my mind, after listening to the testimonies and evaluating the evidence I am unable to accept that the Defendant owes the amount claimed by the Plaintiff and endorsed on the Amended Writ of Summons being GH¢761,053.00. This is because in my respectful opinion, the Plaintiff failed to establish by cogent evidence that, it is the debt owed.
(43) The Supreme Court in the case of MULLER v. HOME FINANCE CO. LTD [2012] 2 SCGLR 1234 held and stated at Holding 4 that:
“The Supreme Court would to a larger extent agree with the Court of Appeal’s observation that it was not the duty of the trial Court in civil cases to make the case for the parties; and that the duty of trial Court was to enter judgment for the party what it has asked for and not to give him what the Court thought he needed. However, it was fairly now established that on the principle of doing substantial justice, the Court might in some circumstances grant a party reliefs not asked for; provided the grant of that or those reliefs would help achieve substantial justice to the case and bring litigation to an end between the parties”.
(44) Applying the above principle to the case at bar, does the above finding mean that I should wring my hands in despair and lament that because the Plaintiff failed to establish by cogent evidence the figure endorsed on her Writ of Summons she should go home empty handed even though the Defendant admits owing her some amount of money for the goods supplied? In my respectful view equity and conscience dictate that I should not do so. It bears stressing that though this court is a court of law, it is also a court of equity or conscience. In my view, to do substantial justice to the parties I ought to look at the Defendant’s own evidence.
(45) The Defendant told the Court he owes the Plaintiff GH¢159,369.50. According to her she arrived at this figure after making some deductions of payments she claims to have made. Having looked at the evidence I am willing to accept the payment of GH¢40,000 paid by cheque on 20/12/2016 and GH¢60,000.00 also paid by cheque on 5/01/2017. My acceptance is based on my verification of same from Exhibit 3, being the Bank Statement tendered by the Defendant. Even though payment does not have the Plaintiff’s name on it, I am satisfied that there is some nexus between the evidence and the exhibit. Also, since the deduction captured at paragraph 10 of the Defendant’s witness statement is not disputed by the Plaintiff I accept that that the Plaintiff made payments through one Red in the amount of GH¢50,000 and GH¢48,000 respectively, In fact, the Plaintiff admitted that in her reply filed and stated that “those payments were made before August 2016”.
(46) I am however unable to accept the Defendant’s evidence that in October 2016, she returned goods worth GH¢244,947.50 to the Plaintiff through a mutual friend called Joe. This evidence was pleaded as paragraph 9 in the statement of defence. The Plaintiff denied it in the reply and statement of defence to Counterclaim filed. At paragraph 6 of the reply filed on August 2, 2017 the Plaintiff denied paragraph 9 and 10 of the statement of defence and rather stated that “on the 3rd of November 2016, Plaintiff retrieved goods worth Two Hundred and Seventy Four Thousand, One Hundred and Twenty Four Cedis (GH¢274,124) from the shop at Kasoa” and the amount was deducted from the outstanding balance which was GH¢1,163,177 at that time and the balance then became GH¢889,053. The Defendant did not lead any evidence to rebut the denial of the Plaintiff.
(47) It has been held in the case BANK OF WEST AFRICA LTD. vs ACKUN SUPRA that the party who asserts the positive carries the burden to lead evidence in proof of his claim or assertion. Since the Plaintiff denied the Defendant’s contention that some goods were returned through one Joe, in my opinion it was incumbent upon the Defendant to either call the said Joe as a witness to corroborate her story or produce some confirmatory evidence to support the contention. In this case however, the Defendant failed to lead any evidence to prove that goods worth GH¢244,947.50 were returned to the Plaintiff in October 2016 through one Joe. As was held by the Court of Appeal in the case of FRANCE v GOLIGHTLY & ANOR [1991] 1 GLR 74, CA (holding 3) “where a fact was capable of positive proof it was wrong to rely on assumptions”. The Defendant failed to prove her contention for the justification of the deduction she made.
(48) I further note that Counsel for the Plaintiff under cross-examination questioned the Defendant as to the appropriateness of her contention that the debt owed is GH¢159,369.50. According to Counsel when one consider the fact that the Defendant later issued cheques with the face value more than the said figure then the Defendant’s position did not make sense. This is part of the said exchange:
“Q. You have also told this court that as of September 2016 the debt owed to the Plaintiff was GH¢159,369 and that is the only debt that you owed to the Plaintiff, is that correct
A. Yes my lord
Q. And yet you issued three cheques dated 20th December 2016, another cheque on 5th of January 2017 and the third cheque in February 2017 totaling GH¢200,000 meaning you were fully aware that your debt is more than the and 159,000 that you claimed
A. I issued GH¢60,000 and GH¢40,000 cheques that went through in December and January and the second was GH¢100,000 in February but at the time my balance was GH¢159,000.
Q. So in fact the February 2017 cheque which was valued at GH¢100,000 was dishonoured, is that correct
A. Yes because I told the Plaintiff I had still not received the money in my account so she should not send”
(49) Clearly, the contention of the Defendant in the above exchange at first blush does not make sense because if the debt as of September 2016 was GH¢159,369, then why did the Defendant issue cheques with the face value of GH¢200, 00? I must however be quick to say that a further review of the answers show that when the February 2017 cheque of GH¢100,000 was issued the debt was GH¢159,369. To that extent I accept the Defendant’s evidence. Based on all of the evidence and the admission of the Defendant, I hereby enter judgment in favour of the Plaintiff in the amount of GH¢159,369.50 together with the price of the goods being the GH¢244,947.50 the Defendant contends she returned to the Plaintiff.
(50) I also do hold that the Plaintiff is entitled to interest at the prevailing Bank lending rate from December 17, 2016 till date of final payment. This is because on the authorities, the rationale for the award of interest on a judgment debt is that if the judgment debtor had paid the money at the appropriate commercial time, the creditor would have had the use of it. Accordingly, the interest was really meant as compensation for what the Plaintiff had lost from the due date. See: HELOO v. TETTEY [1992] 2 GLR 112-129, AMARTEY v. SOCIAL SECURITY BANK LTD. AND OTHERS v. ROBERTSON (CONSOLIDATED) [1987-88] 1 GLR 497-505 [C/A. and the Supreme Court case of UNILEVER GHANA LTD. v. KAMA HEALTH SERVICES [2013-2014] 2 SCGLR 861.
(51) Now, having diligently scrutinized the evidence, I have no difficulty in coming to the conclusion that the Defendant’s Counterclaim must fail. According to the Defendant the Plaintiff agreed to pay her an unconditional flat rate commission of GH¢10,000 per month. The Defendant at trial provided no evidence to support her claim. The Court notes that her Counsel in his submission stated that it was an oral agreement between the parties and therefore the best nature of evidence is for the parties to show the circumstances under which the agreement was made. With the greatest respect to Counsel I find the submission to be untenable and only an attempt to make a way out for his client even though there is no way.
(52) This is what transpired when the Defendant/Counterclaimant was cross-examined on the counterclaim:
Q. Also you claim that you were entitled to a commission of GH¢10,000 a month
A. Yes my lord that made me do the extra work for her.
Q. How was this figure of GH¢10,000 arrived at?
A. She told me she was going to pay me GH¢10,000 out of the commission Promassidor gives her.
Q. It is not the industry practice that commissions are fixed and not based on a percentage of the value of sales.
A. It may not be the practice for other reps because they did not do what I did for her. She became number one in 2015 and 2016
Q. I put it to you that you were not the only distributor for the Plaintiff and therefore you could not be solely responsible for her number one status.
A. The Plaintiff cannot deny that I made her number one twice…
Q. I put it to you that your counterclaim is an afterthought
A. It is not an afterthought, she told me herself in her small office whilst sitting on the floor that she will pay me that amount so it is not an afterthought
Q. And yet you have no evidence before this court to back to this claim
A. She is my evidence, she told me herself because I was there with her alone with no other person.
Q. I put it to you that you are fully aware that you are not entitled to any commission because you failed to make full payment of the goods supplied each month
A. That is not true.
(53) The old case of MAJOLAGBE v. LARBI [1959] GLR 190 @ 192 has long shown the path to follow and laid in clear 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. See also FRANCE v GOLIGHTLY & ANOR SUPRA. The Defendant ought to know that the general rule is that where a party in a civil suit raises an issue which is essential to the success of her claim, she 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.
(54) Juxtaposing the story of the Plaintiff against the Defendant, I have no difficulty in rejecting the above contention of the Defendant and Counsel’s submission that there was an agreement for the Defendant to be paid a commission of GH¢10,000 per month by the Plaintiff. In my opinion, there is no air of reality to the Defendant’s contention for the counterclaim. I agree totally with the Plaintiff’s Counsel that the contention is an afterthought. Indeed, in my opinion the Defendant’s position was not supported by any compelling body of confirmatory evidence. Consequently, the counterclaim is dismissed as unproven.
(55) In summary, I enter judgment for the Plaintiff for the:
a. Recovery of the sum of One Hundred and Fifty Nine Thousand, Three Hundred and Sixty Nine Cedis and fifty pesewas (GH¢159,369.500) together with the sum of GH¢244,947.50 being outstanding amount owed to the Plaintiff by the Defendant for the goods supplied to her which she sold;
b. Interest on the amount in relief (1) at the prevailing commercial bank rate from 5th December 17, 2016 to the date of final payment;
(56) I shall also award the Plaintiffs costs of GH¢ 8,000. 00. I have considered the factors under Order 74 of C.I. 74 and the adjournments as captured in the Court’s record.
CASES REFFERED TO
ZABRAMA VRS. SEGBEDZI (1991) 2 GLR 221
RE: ASHALLEY BOTWE LANDS, ADJETEY AGBOSU & OTHERS v. KOTEY & OTHERS [2003-2004] SCGLR 420.
OKUDZETO ABLAKWA (No. 2) vs. ATTORNEY GENERAL & ANOTHER [2012] 2 SCGLR 845 at 867
BANK OF WEST AFRICA LTD vs. ACKUN [1963] 1 GLR 176.
ABABIO VRS. AKWASI IV [1994 – 1995] GBR 774
TAKYI v APPIAH (1982-83) 1 GLR 1 C/A.
MULLER v. HOME FINANCE CO. LTD [2012] 2 SCGLR 1234
FRANCE v GOLIGHTLY & ANOR [1991] 1 GLR 74, CA HELOO v. TETTEY [1992] 2 GLR 112-129,
AMARTEY v. SOCIAL SECURITY BANK LTD. AND OTHERS v. ROBERTSON (CONSOLIDATED) [1987-88] 1 GLR 497-505 [C/A.
UNILEVER GHANA LTD. v. KAMA HEALTH SERVICES [2013-2014] 2 SCGLR 861.
