The Plaintiff and the Defendant used to be married to each other. The relationship between the parties has since broken down. Thereafter, the parties who were joint shareholders of a Company Ephraim Gas Company Ltd had issues with the form the Company should take on the dissolution of their marriage.

As a result, the Plaintiff claimed against the Defendant the sums of GH¢34,084.40 and GH¢65,000.00 being allowance Plaintiff said were ordered by the court to be paid to him as shareholder for the period December 2004 to August 2011 and also the outstanding balance of weekly allowance due to Directors of Ephraim Gas Company Ltd from February 2012 to date respectively.

Plaintiff’s case as encapsulated in his Statement of Claim was that he had instituted a prior action against the Defendant in Suit No. OCC/4/2007 entitled Benjamin Ayisi Addo v. Charity Akosua Asabea. Judgment had been given in his favour affirming that he was a 50% shareholder in Ephraim Gas Company Ltd.

He stated that whilst the case was pending in court, he had applied for and obtained an interim order in which both parties were to be paid an allowance of GH¢700.00 each pending final determination of the issues between them.

The Plaintiff averred further that they eventually managed to arrive at an amicable settlement in which the Plaintiff was to be paid a weekly allowance of GH¢500.00 until the property was sold.

It was the Plaintiff’s case that the Defendant had reneged on this agreement by only paying GH¢1,000.00 representing only 2 weeks allowance. It was his case that the Defendant had arrogated to herself the benefits of the company and had refused to abide by the very terms of settlement that they themselves had signed. This amount had now ballooned into the sum he had sued for .e. GH¢34,080.40.

The Defendant in her defence stated that judgment was given for the Plaintiff in part and for her as Defendant in part as both she and the Plaintiff were to be paid GH¢70.00 per week each from the business operations of the company. In addition, an allowance of GH¢40.00 per week was to be made for the upkeep of the children of the marriage. She stated that in view of this arrangement, she first made provision for the weekly payments for the children’s upkeep. Any money left over from the operations of the company would then be paid over to herself and the Plaintiff. She contended that since the parties had by consent, vacated the judgment of the court and instituted their own settlement, none of them had any rights flowing from the said compromised judgment. She therefore denied owing the Plaintiff the sums endorsed on the writ.

The following issues were settled for trial:

1. Whether or not the Plaintiff settled their dispute as evidenced by the Memorandum of Understanding dated 3^rd February 2012 and thereby compromised their rights under the judgment of Suit No. OCC/4/2007?

2. Whether or not the Plaintiff and Defendant having compromised their rights under the judgment of Suit No. OCC/4/2007, Plaintiff can enforce any rights he may have previously had under the compromised judgment?

3. Whether or not the Plaintiff can enforce any rights he may have previously had under the compromised judgment by instituting a fresh action in court?

4. Whether or not Plaintiff accepted the letter of 12^th November 2014 regarding payment of Defendant’s outstanding and continuing obligations under the

Memorandum of Understanding dated 3^rd February 2012?

5. Whether or not Plaintiff having accepted the letter of 12^th November 2014, Plaintiff’s cause of action in terms of the Memorandum of Understanding dated 3^rd February 2012 has accrued?

6. Whether or not Plaintiff’s action in terms of the Memorandum of Understanding dated 3^rd February 2012 is premature?

In his evidence, the Plaintiff said he singlehandedly set up Ephraim Gas Company Ltd in 2001. Therefore, from the inception of the company, he was the sole shareholder and Managing Director. He then made the Defendant a Director and handed over to her 50% of his shares. He stated further in 2003 the Defendant tried to dispossess him of his company. He then took ill sometime in 2005 whereupon, the Defendant forged certain documents and transferred the company into her own name. Following this, he said he instituted suit at the High Court. The High Court, he said, made the following orders:

1. The Defendant was to account for all monies handled by her in her conduct of the business of Ephraim Gas Company Ltd.

2. The Defendant was to pay forthwith to the Company, all money due to it.

3. The Defendant was to pay to the Plaintiff all monies due from the Company.

He stated that after the judgment, the parties entered into a Memorandum of Understanding in which both Directors, being Plaintiff and Defendant were to draw a weekly amount of GH¢500.00 from the Company. However, not only has the Defendant failed to pay him his due, she has taken to insulting him as well. He was thus constrained to institute the instant suit.

The Defendant’s version of events is not surprisingly at variance with the version put forth by Plaintiff. It was her case that her father bestowed on her a one storey building which she converted into a restaurant. Due to mismanagement by the Plaintiff, the restaurant collapsed. According to her, she sold the building for GH¢35,000.00 and invested the proceeds in the acquisition of land upon which she built the Gas Station which became the company now subject matter of this dispute. She also constructed some shops on the land. She said she wanted to register the business as an enterprise but was prevailed upon by the Plaintiff, then her husband to register it as a limited liability company. She could not present herself at the Registrar-General’s Department in person due to a family emergency. She therefore entrusted the registration to the Plaintiff who did see to the Company’s registration but made himself Managing Director and herself Secretary.

She claimed to have paid GH¢7,000.00 to the Plaintiff to acquire a gas tank but said the Plaintiff never used the money for that purpose and that they eventually had to take a bank loan to purchase said gas tank. She later had to sell some land to repay the loan. She said the ensuing disagreements over the business and other matters led them to a divorce and the court suit. She stated that she had been complying with the Memorandum of Understanding which gave the Directors a weekly allowance of GH¢500.00 until there was a shortage of gas which affected the fortunes of the Company.

The Plaintiff in his address argued that the Defendant had admitted in cross-examination that the company was jointly owned being property that had been acquired in the course of the marriage. He referred the court to the case of Mensah v. Mensah (2012) SCGLR 393 and Quartson v. Quartson (2012) 2 SCGLR 1077 to support his stance that property acquired during the marriage is deemed to be jointly owned property. He argued that the parties had signed a Memorandum of Understanding and were bound by and could not resile from it.

The Defence in her address stated that she was not the proper party to be sued since the Plaintiff sought reliefs against a company which should have also been party to the suit. The company not being party to the suit could not be asked to pay any money to the Plaintiff. Counsel referred to the cases of Quartson v. Quartson (2012) 2 GLR 1077 @1092 and Morkor v. Kuma 1998/99) SCGLR 620.

It was also argued on behalf of the Defendant that since the parties had compromised the judgment and entered terms of settlement post judgment; neither of them was entitled to sue under the said judgment. Counsel referred the court to the cases of Okantey v. Kwadey (1975) 1 GLR 193 @200 and Akwei v. Akwei (1961) GLR 212.

The court will first deal with the following issues (1), (2) and (3) which are closely related.

These are:

1. Whether or not the Plaintiff settled their dispute as evidenced by the Memorandum of Understanding dated 3^rd February 2012 and thereby compromised their rights under the judgment of Suit No. OCC/4/2007?

2. Whether or not the Plaintiff and Defendant having compromised their rights under the judgment of Suit No. OCC/4/2007, Plaintiff can enforce any rights he may have previously had under the compromised judgment?

3. Whether or not the Plaintiff can enforce any rights he may have previously had under the compromised judgment by instituting a fresh action in court?

It is an undisputed fact that the differences between the parties led them to court and that the court gave its judgment in the matter. Exhibit A tendered by the Plaintiff is the same document as Exhibit 3 tendered by the Defendant. This is a judgment of the High Court dated 21^st August 2008 in respect of Suit No. OCC/4/2007 titled Benjamin Ayisi Addo v. Charity Akosua Asabea.

In that suit, the Plaintiff therein claimed against the Defendant the following reliefs:

a) An order directed against the Defendant to forthwith hand over the management of the company Ephraim Gas Company Ltd to the Plaintiff, its Managing Director.

b) An order directed at the Defendant to forthwith hand over the premises and assets of the company Ephraim Gas Company Ltd to the Plaintiff, its Managing Director.

c) An order directed at the Defendant to account for all monies handled by her in her conduct of the business of the company Ephraim Gas Company Ltd.

d) An order for the payment forthwith of all monies due to the company Ephraim Gas Company Ltd from its business to it.

e) An order for the payment forthwith of all monies due to the Plaintiff from the business of the company Ephraim Gas Company Ltd to him.

f) An order of perpetual injunction to restrain the Defendant, her agents, servants, assigns or whomsoever from entering the premises of and dealing in any manner with the business or assets of the company Ephraim Gas Company Ltd.

g) General Damages

h) Costs

In the said suit, the Defendant therein also filed a counterclaim for the following reliefs:

i) A declaration against the Plaintiff that Plaintiff has made no financial contribution towards the promotion of the company the subject matter of Plaintiff’s suit.

ii) A declaration against the Plaintiff that accordingly Plaintiff is not entitled to any stake in the company, either as shareholder or director of the company.

iii) An order directing the Plaintiff to resign his directorship of the company by writing a letter to that effect.

iv) An order directing Plaintiff to execute an instrument transferring all his share in the company to defendant.

v) An order directing Plaintiff to account for how Plaintiff used the sum of ¢317 million or any part thereof being the sum received by Plaintiff as rent for the stores constructed on Plaintiff’s company’s land.

vi). An order directing Plaintiff to account for the sum of ¢240 million taken as loan from the bank on behalf of the compamy.

vii) An order for payment by the Plaintiff to the company of all moneys found due the company on taking of such account.

viii) An order of perpetual injunction restraining Plaintiff from interfering with the Defendant’s running of the company’s business

The court gave judgment in this matter and stated at p. 12 of the judgment as follows:

I have no doubt that the intention of the parties was to set up a company for their mutual benefit. This was at a time when the parties were happily married. I am of the view that the defendant’s evidence that her original intention was to form a sole proprietorship is an afterthought and has been influenced by the fact that the marriage subsequently turned so8ur and the parties are now estranged.

Both parties were adjudged equal shareholders of the company. After the court’s judgment of 21^st August 2008, the parties on 3^rd February 2012 fashioned out for themselves, a Memorandum of Understanding (MOU). The MOU will be reproduced in view of its importance to this suit.

THIS MEMORANDUM OF UNDERSTANDING is made this 3^rd day of February 2012 between Benjamin Ayisi of House No. 16 near Emmanuel Presbyterian Church (hereinafter called the 1^st Party) and Charity Akosua Asabea of House No. 165/23,North Dzorwulu, Accra (hereinafter called the 2^nd Party).    

The 1^st and 2^nd Party together shall be called “The Parties”

IT IS AGREED by the Parties that

1. That House NO. C4-74A be valued.

2. House No. C4-74A Ashaley Botwe be jointly assigned to the children of the parties herein, Derek Ayisi Addo, Stephen Ayisi Addo and Davina Ayisi Addo.

3. The properties and offices of Ephraim Gas Company Ltd (hereinafter called the Company) be valued and divided on a 50/50 basis.

4. The 1^st Party is given the first option to buy 2^nd Party out of the Company, 2^nd Party has the second option to buy 1^st Party out of the Company Ltd failing which any 3^rd Party interested party/interest buyer will have the option to buy the property.

5. Withn 10 days from the date herein, a valuation will be conducted on the property by Assenta Property Valuers of Boundary Road, Adabraka

6. That the parties shall within 72 hours of completion of valuation indicate their acceptance or otherwise of the valuaton report or otherwise of the valuation report. If the parties fail to agree, the AESL or the Land Valuation Board shall be invited to determine the appropriate valuation.

IT IS FURTHER AGREED THAT

a. Within 6 weeks of acceptance of valuation, 1^st Party has the first option to buy 2^nd

Party out of the Company Ltd failing which 2^nd Party will have the 2^nd option to purchase his business within a period of 6 weeks.

b. If neither party is able to buy the other party out, within the stipulated period then a third party shall be invited to purchase the property or same shall be put up for auction.

c. The cost of the valuation and solicitors’ costs will be borne by the Company.

d. That the Parties both as Directors shall draw weekly earnings of GH¢500.00 each from 1sr February 2012 until date of sale.

WHEREFORE the parties have set their hands the date first written above.

From the above, the parties substituted the judgment delivered on 21^st August 2008 with their own MOU of 3^rd February 2012. What is the significance of this substitution? In Akwei v. Akwei (1961) GLR 212 judgment was entered for the Plaintiff in respect of a house she had purchased. In spite of this judgment, the Plaintiff submitted to arbitration and an award was given in the same matter. When the matter was re-instituted in court, the court delivered itself thus:

If after a court of competent jurisdiction had adjudicated upon a dispute between parties, the parties voluntarily submitted the dispute in respect of the same subject-matter to arbitration, they will be estopped from claiming the fruits or benefits of the said judgment of the court, and would be bound by the award of the arbitration held subsequent to that judgment.

The court in its judgment refereed to the case of Yardom v. Minta III where a consent order was entered by the High Court in a suit between the parties on a boundary dispute. Sometime after that the parties submitted a dispute between them in respect of the same boundary to arbitration held in accordance with customary law. Later they again submitted a further dispute to arbitration. The plaintiff then sued in the High Court to enforce the second award and obtained judgment, Hall J. holding that the parties were bound by the award of the arbitration. On appeal to the Full Court, the court was unanimous that once a valid arbitration by customary law was held subsequent to the judgment of the court, the parties were bound by the award and were estopped from claiming rights under the judgment.

In the case of Okantey v. Kwadey (1975) 1 GLR 198 the court held that a litigant in whose favour judgment was pronounced was at liberty not to pursue the judgment and no court of law would suo moto invite him to pursue it.

Moreover, after a judgment had been delivered, it was open to a successful party to compromise his rights under the judgment and make whatever arrangements he wished with the unsuccessful party without the court’s approval or blessing.

This is what happened when the parties did not take up their respective rights under the judgment but proceeded to fashion out for themselves an MOU. Having compromised their rights under the judgment of 3^rd August 2008 in settlement of the dispute between them, the Plaintiff cannot now institute a fresh suit to enforce any rights he may have previously had under the compromised judgment.

Consequently, the Plaintiff is not entitled to his claim for the recovery of an amount of GH¢34,084.40 being the allowance ordered by the court on 21^st August 2008 to be paid to him as shareholder for the period of December 2014 to August 2011. He is not entitled to any rights under the compromised judgment. It also follows therefore that the Plaintiff cannot enforce any rights he may have previously had under the compromised judgment by instituting a fresh action in court.

So what is the significance of the MOU? Can it be enforced?

The Plaintiff’s claim under the MOU is for the sum of GH¢65,000.00 being the outstanding balance of Directors of Ephraim Gas Company Ltd, Accra from February 2012 to date of sale of the company as per the MOU signed by the parties herein on 27^th February 2012.

The parries have all given their evidence which is basically a rehash of their shared past. The parties have led evidence on extraneous matters not relevant to the determination of this matter.

In this court’s view, the High Court differently constituted adjudged the parties to be 50% shareholders in Ephraim Gas Company Ltd. In the light of this, evidence of who formed the company, who paid for the company’s equipment and whether or not there was a fraudulent manipulation of documents are all moot points. Currently, it is the Plaintiff’s case that he was not paid his rightful due from the proceeds of the company from February 2012 when the MOU was entered into till date of the sale of the company. The burden of proof was initially on the Plaintiff to lead evidence that would entitle him to judgment. See Section 17(2) of the Evidence Act, 1975 NRCD 323 and Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v. Kotey & Ors (2003.2004) SGLR 420 @ 425. This burden continues to shift depending on the nature of evidence adduced by the parties and their witnesses. Thereafter, it was up to the Defendant to lead evidence in proof of her contention that she had been faithful to the terms of the MOU.

From the Exhibit 5 series, payments had been made by Ephraim Gas Company Ltd to the Plaintiff on dates ranging from 2014 to 2015 when the matter was already in court. The payment dates were from 20^th November 2014 and continued up to 22^nd July 2015. No payments have been made after this date.

There was no evidence of payments made from 3^rd February 2012 till 20^th November 2014.

In the case of Fosua & Adu-Poku v. Dufie (deceased) and Adu-Poku Mensah (2009) SCGLR 316, the court held that Section 11(4) of the Evidence Act, 1975 NRCD 323 put the obligation in civil proceedings of producing evidence on a party to produce sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. Preference was also given in that case to documentary evidence over oral evidence.

Have any of the parties been able to lead such evidence?

The court finds from the evidence at its disposal that the parties failed to abide by the Judgment rendered by the court in this matter on 21^st August 2008. They replaced it with the MOU of 3^rd February 2012. They have similarly failed to adhere to the terms of the MOU. Not only have they failed to have a valuation of the company made, they have also have failed to either as 1^st party or 2^nd party to buy out the other party’s interest in the company. Failing this, a 3^rd party was to buy out the interest of both of them. This has also failed to materialize. It seems to me that the parties are unable to comply with either what the court has ordered or what they have fashioned out for themselves. As matters stand so far, the Defendant owes to the Plaintiff weekly amounts of GH¢500.00 a week from 3^rd February 2012 up to 20^th November 2014 when payments were commenced and then from 29^th July 2015 when payments ceased till date of final judgment and subsequently until the Company is sold. Interest is to accrue on the said amount from the dates the money was due until date of final judgment.

In Ackah v. Pergah Transport Ltd (2010) SCGLR 728 @ 736 the court held:

It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence.

See also Section 12 of the Evidence Act which provides as follows:

(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

The parties have come to court based on the MOU. The Defence Counsel has argued in his address that the action should have been against the Company and not against the Defendant as an individual. However, the Defendant and not Ephraim Gas Company was a party to the MOU which is the subject matter before this court. The Defendant also never put forth this defence in her pleadings.

Since this was neither an issue set down for trial nor did it arise from the pleadings it is rather late in the day for the Defence to be addressing the court on it.. In the case of Hasnem Ltd v. Swiss African (1999/2000) 1 GLR 1 @ 16 the court held that cases should be determined purely along the lines on which they were fought as disclosed by the pleadings. It was the court’s view that it would be manifestly wrong and unjust for a court to substitute or accept a case contrary to or inconsistent with that which the party himself put forward be he Plaintiff or Defendant. The court quoted with approval Lord Norman in Esso Petroleum Co. Ltd v. Southport Corporation (1956) AC 218 @ 228-229 thus:

“The function of pleadings is to give fair notice of a case which has to be met, so that the opposing party may direct his evidence to the issue disclosed by them. To condemn a person on a ground of which no fair notice has been given may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded.”

It was therefore up to the Defendant in the first place to have pleaded that the Company was the proper party to be sued rather than for her to have raised it by way of argument in her address. This would have given the Plaintiff fair notice of the defence for him to have been able to respond to it appropriately. See also the case of Hammond v. Odoi & anor 1982/83 GLR 1215 @ 1235 per Crabbe JSC:

Pleadings are the nucleus around which the case - the whole case - revolves. Their very nature and character thus demonstrate their importance in actions, as for the benefit of the court as well as for the parties. A trial judge can only consider the evidence of the parties in the light of their pleadings. The pleadings form the basis of the respective case of each of the contestants. The pleadings bind and circumscribe the parties and place fetters on the evidence that they would lead. Amendment is the course to free them from such fetters. The pleadings thus manifest the true and substantive merits of the case.

That being the case the court would confine itself to the pleadings and the issues arising therefrom. To do otherwise would be to take the Plaintiff by surprise and would be vastly unfair.

This leaves the court with the outstanding issues of:

4. Whether or not Plaintiff accepted the letter of 12^th November 2014 regarding payment of Defendant’s outstanding and continuing obligations under the Memorandum of Understanding dated 3^rd February 2012?

5. Whether or not Plaintiff having accepted the letter of 12^th November 2014, Plaintiff’s cause of action in terms of the Memorandum of Understanding dated 3^rd February 2012 has accrued?

6. Whether or not Plaintiff’s action in terms of the Memorandum of Understanding dated 3^rd February 2012 is premature?

The letter dated 12^th November 2014 regarding payment of Defendant’s outstanding and continuing obligations under the MOU was not tendered in evidence either by the Plaintiff or the Defendant. No evidence was led on it by either party of said letter. The court is therefore unable to make a finding on these matters due to the dearth of evidence on same.

The court therefore would not consider them.

In the case of Zabrama v. Segbedzi (1991) 2 GLR 221 CA and re-affirmed in the case of

Continental Plastics Ltd v. IMC Industries (2009) SCGLR 298 @ 306-307, the court stated:

“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.”

The Plaintiff has made his claim and has led evidence in support of same. He has discharged the burden on him to establish its case on a preponderance of probabilities. See Sections 10(1), 11(1) and 11(4) of the Evidence Act, 1975 NRCD 323.

Section 10(1)

For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.

Section 11(1)

For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.

Section 11(4)

In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.

By the MOU, the Parties are entitled to draw weekly earnings of GH¢500.00 each until the Company is sold. It would be prudent for the parties to follow their own terms and get the assets and shares of the company valued as proposed and make the necessary arrangements to bring finality to this matter.

Judgment is entered for the Plaintiff on the sums of GH¢500.00 a week from 10^th February

2012 up to 20^th November 2014 and then from 29^th July 2015 till date of final judgment. Interest is to accrue on the said amount from the dates For the avoidance of doubt, each party will continue to be entitled to GH¢500.00 a week from the Company until the Company is eventually sold.

Costs of GH¢8,000.00 is awarded against Defendant.

(SGD)

JENNIFER A. DODOO

JUSTICE OF THE HIGH COURT