IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(COMMERCIAL DIVISION)
ACCRA - A.D 2016
LIBERTY CAPITAL LIMITED - (Plaintiff)
MR. PRINT LIMITED AND DICK MENSAH - (Defendants)
DATE: 16TH DECEMBER, 2016
SUIT NO: RPC/427/2012
JUDGES: SAMUEL K. A. ASIEDU, JUSTICE OF THE HIGH COURT
MR. LIVINGSTON AMEVOR FOR MR. E. A. VORDOAGU FOR THE PLAINTIFF
MR. G. A. MENSAH FOR THE DEFENDANTS
By a writ of summons issued on the 15th day of November, 2012 the plaintiff company claims against the defendants herein:
(i) Recovery of GH¢2,649,211.38 (Two Million Six Hundred and Forty Nine Thousand Two Hundred and Eleven Ghana Cedis Thirty-Eight Pesewas) being balance of debt owed by the defendants.
(ii) Interest on the said sum from 9th November, 2012 till the date of final payment at the monthly rate of 5% per month.
(iii) An order to arrest the 2nd Defendant to furnish sufficient security against any judgment to be recovered against them.
(v) Any other order(s) as this Honourable Court may deem fit.
After the entry of appearance and consequently after the close of pleadings and the failure of pre-trial settlement, the case was fixed for trial. The plaintiff gave evidence through a representative and then closed its case. The defendants also gave evidence through the 2nd defendant who is the Managing Director of the 1st defendant company. Two persons were also invited to testify on behalf of the defendants.
The following issues come up for determination by the court; that is:
1. Whether or not the Defendants are jointly and severally indebted to Plaintiff in the sum of GH¢2,649,211.38 (Two Million Six Hundred and Forty Nine Thousand Two Hundred and Eleven Ghana Cedis Thirty-Eight Pesewas) or any other sum.
2. Whether or not Plaintiff acquired 55% of the shares in 1st Defendant Company as a consideration to off-set the latter’s indebtedness.
3. Whether or not 1st Defendant is in breach of the Corporate Guarantee given to Plaintiff.
4. Whether or not 2nd Defendant is in breach of the Personal Guarantee given to Plaintiff.
In respect of the first issue set out above, that is, whether or not the defendants are jointly and severally indebted to Plaintiff in the sum of GH¢2,649,211.38 (Two Million Six Hundred and Forty Nine Thousand Two Hundred and Eleven Ghana Cedis Thirty-Eight Pesewas) or any other sum, the court finds from the evidence on record that on the 20th day of May, 2011 the 1st defendant represented by its Managing Director issued a commercial paper in favour of the plaintiff to cover an amount of GH¢1,560,519.01. This finding is supported by the said commercial paper which was tendered and received in evidence as exhibit. The court finds from the evidence on record that the amount stated in exhibit ‘A’ is a consolidation of various credit facilities which the plaintiff had, upon request, made available to the 1st defendant for the purpose of recapitalization and also for the purchase of new equipment. The testimony of Fred Gnanih contained in his witness statement filed in support of the case for the defendants corroborate the evidence of the plaintiff that the loan given to the 1st defendant was partly to enable fresh equipment to be acquired by the 1st defendant. At paragraph 3 of his witness statement, Fred Gnanih who testified as the first witness for the defendants stated that:
3. That sometime in the year 2010, I was commissioned by the Plaintiff to supply printing equipment to 1st defendant company.
Again under cross examination DW1 gave the answers following to questions put to him:
“Q. When you submitted the pro-former invoice the one you identified as the amended one as contained in exhibit ‘7’ series various cheque payments were made to you by the plaintiff. Not so?
Q. And each time a payment was made to you, you acknowledged receipt of the payment and then you also indicate the balance on the receipt.
Q. Can you have a look at exhibit ‘7a’, ‘7b’, ‘7c’, ‘7d’, ‘7e’ and ‘7f’ which you have issued to the plaintiff?
Q. It was based on those payments that you supplied the equipment to the 1st defendant. Not so?
As already noted, the testimony of the defendants’ own witness together with exhibits 7 series tendered by the said witness, supports the evidence of the plaintiff that the plaintiff financed the purchase of equipment by the 1st defendant. The law is stated quite clearly in Asante vs. Bogyabi  GLR 232 that:
“Where the evidence of one party on an issue in a suit was corroborated by witnesses of his opponent, whilst that of his opponent on the same issue stood uncorroborated even by his own witnesses, a court ought not to accept the uncorroborated version in preference to the corroborated one unless for some good reason (which must appear on the face of the judgment) the court found the corroborated version incredible or impossible.”
In this respect the court has no option but to accept the evidence of the plaintiff as being more credible than the testimony of the defendants.
Flowing from the above, the court finds that the defendants failed to honour their indebtedness to the plaintiff such that by the middle of May 2011, the plaintiff served exhibit ‘H’ on the defendants indicating the level of the defendants’ indebtedness to the plaintiff and when a final demand notice dated 19th March, 2012 was served by the plaintiff on the defendants, the debt had arisen to GH2, 744,573.68.
The defendants do not deny executing exhibit ‘A’ but say that it was executed just for the purpose of creating a paper trail of the involvement of the plaintiff as a shareholder in the 1st defendant company. This assertion by the defendants is not borne out by the very exhibit said to have been created just to serve as a paper trail and in the opinion of the court the said evidence is indirect breach of section 177(1) of the Evidence Act, 1975, NRCD 232 which states that:
“177. Extrinsic evidence affecting the contents of a writing
Except as otherwise provided by the rules of equity, terms set forth in a writing intended by the party or parties to the writing as a final expression of intention or agreement with respect to those terms may not be contradicted by evidence of a prior declaration of intention, of a prior agreement or of a contemporaneous oral agreement or declaration of intention, but may be explained or supplemented…”
In Gorman & Gorman vs. Ansong  1 SCGLR 174 the court explained the position of the law that:
“The general rule regarding the construction of documents was that the court must give effect to the intention of the parties as found in the document and not what was intended to have been written, so as to give effect to the intention expressed. The courts would be hesitant to construe private documents outside the four corners of the documents for good reason. Contracts and other written documents between private individuals were presumed, unless otherwise proven, to represent the intentions of the parties. Thus any undue interference by the courts would fly in the face of the sanctity attached to such documents. However, the general rule was not in any way absolute. Ultimately, interpretation of contracts or documents of any kind must give effect to the true intent of the parties. The courts were in duty bound to give effect to the parties’ written intentions. But the courts must also consider, in appropriate cases, surrounding circumstances, which had the effect of elucidating the intentions of the parties.
Extrinsic evidence (i.e. evidence of a prior agreement) might be admitted to construe a document in certain circumstances. Thus extrinsic evidence might be employed where there were conflicting or contradictory terms or where such evidence would elucidate the intention of the parties. But extrinsic evidence could not be admitted if that evidence was inconsistent with the intentions of the parties as expressed in the document.”
As a further proof of the fact that the defendants took loan facilities from the plaintiff, the representative of the plaintiff tendered in evidence exhibits ‘B’ and ‘C’. Exhibit ‘B’ is a corporate guarantee and it was executed by the 2nd defendant in his capacity as the Managing Director of the 1st defendant in which the 1st defendant guaranteed irrevocably and unconditionally to pay to the lender upon demand all monies made available to the 1st defendant. Again, by exhibit ‘C’, the 2nd defendant put in a personal guarantee to pay to the lender all sums of money lent to the 1st defendant. How can the 2nd defendant be heard to say that these documents were prepared and or executed by him just for the purpose of creating a paper trail. That assertion is very much untenable in the opinion of the court and it seeks to introduce evidence to change or vary the effect of all those documents much against the provisions of the Evidence Act as already alluded to.
The court finds from the evidence on record that the 1st defendant managed to secure the said facilities from the plaintiff by informing the plaintiff that it has secured a printing contract from Zain Ghana Limited for the printing of bill boards. As a result the plaintiff requested the 1st defendant to write to Zain Ghana Limited for the payment of the contract sum to be made in the name of the plaintiff and the 1st defendant. The 1st defendant readily obliged to the request made by the plaintiff as shown by exhibit ‘D’ dated the 14th September, 2010. The plaintiff also followed up on exhibit ‘D’ and wrote exhibit ‘E’ again to Zain Ghana Limited. Finally Zain Ghana Limited responded by writing exhibit ‘F’ to the plaintiff in which it promised to effect payment for the contract with the 1st defendant in the joint names of the plaintiff and the 1st defendant. There is evidence on record, which the court has no reason to doubt, that the defendants subsequently, managed to get Zain Ghana Limited to effect payment of the contract sum to the defendants alone contrary to the agreement between the parties. The court is therefore convinced beyond doubt that the 1st defendant indeed took a loan from the plaintiff. The court holds, therefore, that the 1st and the 2nd defendants are indebted to the plaintiff on the loan which they took from the plaintiff and also on the guarantee which they made to the plaintiff.
The evidence of the defendants is that the plaintiff acquired a 55% share from the shares of the 2nd defendant in the 1st defendant company in consideration of the plaintiff investing an amount of $720,000.00 in the 1st defendant company. The defendants tendered in evidence exhibits 1 and 2 in support. Exhibit ‘1’ is, truly, a deed of transfer and, by that exhibit, the 2nd defendant agreed to transfer to the plaintiff 550 shares out of his shareholding of 1,000 shares in the 1st defendant company. The cost of the 550 shares had been stated in exhibit ‘1’ as being GH¢5, 500.00. The payment of the cost of the shares has been acknowledged by exhibit ‘1’. The court finds that there is nowhere in exhibit ‘1’ that the parties agreed that the plaintiff will invest an amount of $720,000.00 in the 1st defendant company. Indeed, the defendants have alleged in their statement of defence that the plaintiff agreed to invest the sum of $720,000.00 in the 1st defendant company. This allegation had been denied by the plaintiff in its Amended Reply. It therefore behoves on the defendants to lead credible evidence to prove this claim as stated in the case of Okudzeto Ablakwa (No. 2) vs. Attorney General & Another  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…”
And, in Ackah v Pergah Transport Ltd  SCGLR 728 the court re-stated the point that:
“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 it 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. This is a requirement of the law on evidence under sections 10(1) and (2) and (11(2) and (4) of the Evidence Act, 1975, (NRCD 323).”
See also Nortey (No.2) vs. African Institute of Journalism and Communication & Others (No. 2) [2013-2014] 1 SCGLR 703.
The defendants, particularly the 2nd defendant, complained of fraud and oppression by the plaintiff company. However, the defendants have not succeeded in adducing cogent evidence to prove these allegations, given that proof ought to be strict and particularly in respect of fraud, proof ought to be beyond reasonable doubt. Thus, section 13(1) of the Evidence Act, 1975, NRCD 323 states that
“13. Proof of crime
(1) In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.”
See the case of Sasu Bamfo vs. Sintim  1 SCGLR 136 where it was held that:
“The law regarding proof of forgery or any allegation of a criminal act in civil trial was governed by section 13(1) of the Evidence Act, 1975 (NRCD 323); that section provided that the burden of persuasion required was proof beyond reasonable doubt.”
The court is satisfied that from the totality of the evidence on record, the defendants have failed to lead evidence to prove their counterclaim endorsed on their statement of defence. The defendants’ counterclaim is therefore dismissed. On the other hand, the court holds that the plaintiff succeeds in its claim against the defendants. Judgment is therefore entered for the plaintiff against the defendants in the sum of GH₵2,649,211.38 together with interest at the rate of 5% per month from 9th November, 2012 till the date of final payment.
Costs of Twenty Thousand Ghana Cedis (GH¢20,000.00) to the plaintiff against the defendants.