IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL COURT)
KUMASI - A.D 2016
THOMAS GUEADAM - (Plaintiff)
ALHAJI AMADU BILLA - (Defendant)
DATE: 13TH JUNE, 2016
SUIT NO: OCC/11/15
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
OBENG MANU JNR. FOR PLAINTIFF
JOHN AKPARIBO FOR DEFENDANT
The Plaintiff claims against the defendant for an order to account for profits accruing from his investment of 1,500,000.00 CFA francs in their joint lumber export business from January, 2000 to date as well as interest.
The facts of this case are quite interesting. According to the Plaintiff, he came to Ghana sometime in January, 2000 to invest his 1,500,000.00 CFA francs in the onion business, but the defendant who is a fellow Moshie man resident in Ghana convinced him to invest in the lumber business. The Plaintiff alleged that he handed over that money to the defendant for the two to undertake a joint lumber business. The two are alleged to have travelled to Mim to purchase lumber and had the same delivered to the defendant's customer at Kaya, Ouagadougou, Burkina Faso. On the blind side of the plaintiff, the said customer acting in concert with the defendant used the proceeds to buy "waakye" i.e. beans and sent the same to the defendant for sale in Ghana. After that transaction, the plaintiff contended that he and the defendant bought timber from other places in Ghana for resale in Burkina Faso but the defendant kept him in the dark as to how he conducted the re-sale in that country; has never rendered accounts to him; and has not given him any part of the proceeds irrespective of several promises, such as buying a truck for him. It is also the plaintiff's case that the defendant is living a luxurious life with the proceeds from their joint business whilst he lives in extreme poverty and has become more or less homeless in Ghana. These assertions were denied by the defendant and he gave his contrary version in his statement of defence which has since been struck out for non-compliance with the orders of this court in respect of filing witness statement(s).
It is provided under Order 32 Rule 7A (3) (b) of the High Court (Civil Procedure) Rules, 2004, C.I. 47 as amended by C.I. 87 as follows:
“ where a party has failed to comply with any of the directions given at a case management conference or a pre-trial review or both, the Judge may ...
(b) strike out the defence and counterclaim as the case may be, if the non complying party is a defendant"
Oscar Kofi Jimmah who held brief for John Akparibo, counsel for the defendant was in court on 28/07/2015 when the court gave directions at to the filing of witness statements by the parties and a date was fixed for a case management conference. Later, the court was informed that the parties were attempting an out of court settlement. The defendant was given extension of time to file his witness statement when settlement broke down but he never did so. Several hearing notices served on counsel for the defendant could not push him to attend court and it became obvious that they were not interested in the trial.
As many as eight issues were set down for trial, namely:
Whether or not the plaintiff advanced the sum of 1.5 million CFA to the defendant in the joint lumber export business from January, 2000 to date?
Whether or not the plaintiff has ever received proceeds from the sale of timber to Karim?
Whether or not there was an agreement between the plaintiff and defendant as to the quantity of beans to be bought from the sale of the timber?
Whether or not the defendant has advanced as part of the proceeds from the sale of timer an amount of 430,000.00 CFA with a view of attending the funeral of the plaintiff's paternal uncle at Koupiela?
Whether or not the plaintiff was a driver for the carriage of their timber to Burkina Faso?
Whether or not the defendant had ever accounted to the plaintiff, the proceeds of the business?
Whether or not the plaintiff has received one of the vehicles purchased from the sale of the timber from their joint business?
Whether or not the defendant has lived in PAN Hotel for over one year with the proceeds from the parties' joint business.
At the date scheduled for hearing, the court struck out the statement of defence and proceeded to hear the plaintiff's case under Order 36 rule 1 (2) (a) of C.I. 47 which states that:
Where an action is called for trial and a party fails to attend, the trial judge may, where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove his claim"
In this case, the defendant did not have a counterclaim and so after striking out his defence under C.I.
87, the plaintiff was called upon to prove his case under Order 36 of C.I 47, refereed to supra.
I must put on record that with the striking out of the statement of defence of the defendant, the issues for trial which arose from his pleadings have become redundant. Consequently, I will focus on the issues which arise from the plaintiff's pleadings, specifically issues 1,2, 5, 6 and 8. These issues can further be compressed into three main issues as follows:
Whether or not the plaintiff invested the sum of 1,500,000.00 CFA in the joint lumber export business from January, 2000 to date?
Whether or not the plaintiff has ever benefitted from the proceeds from this business?
Whether the plaintiff is entitled to his claims against the defendant?
The onus of proof of these issues rest on the plaintiff. Since the defendant elected not to participate in this trial, the court has only the plaintiff's evidence to evaluate and the result is that if the court chooses to believe the plaintiff's story, the defendant losses by reason of his own default. The consequences of a defendant refusing to do anything to help his own cause came up in the case of Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v Kotey & Ors (2003-2004) SCGLR 420 at 425 where the Supreme Court held as follows:
... A litigant who is a defendant in a civil case does not need to prove anything; the plaintiff who took the defendant to court has to prove what he claims he is entitled to from the defendant. At the same time, if the court has to make a determination of a fact or 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. If the defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour. The logical sequel to this is that if he leads no such facts or evidence, the court will be left with no choice but to evaluate the entire case on the basis of the evidence before the court, which may turn out to be only the evidence of the plaintiff. If the court chooses to believe the only evidence on record, the plaintiff may win and the defendant may lose. Such loss may be brought about by default on the part of the defendant ..."
The plaintiff herein relied on his witness statement re-filed on 04/05/16 which was served on counsel for the defendant on 05/05/16 as his evidence-in chief. The re-filing became necessary because the plaintiff failed to include a statement of truth in his earlier witness statement; he filed a separate statement of truth but the bailiff proved service of only the statement of truth on counsel for the defendant.
In fact, the evidence-in-chief was a mere repetition of the averments contained in the statement of claim which I have summarized above. Not a single document was tendered. He did not also call any witness of fact.
Even though the court has only the plaintiff's evidence to consider, at the same time, the court must ascertain whether his case is probable in terms of sections 11(4) and 12 of the Evidence Act 1975 NRCD 323.
Looking at the evidence on record, i find it very unusual for the plaintiff to have literally followed the defendant for over fifteen years under the pretext of doing a joint business, without taking reasonable steps to protect his financial interest. Most of the factual assertions contained therein were capable of positive proof. For instance, there is no way the plaintiff could have driven a vehicle from Ghana to Burkina Faso without a driver's license and an ECOWAS Brown Card Insurance which are mandatory. The tendering of these documents would have at least supported the bare oral testimony that the plaintiff acted as a driver in the joint business besides his financial contribution. Again, unless the parties did their business through the "back door", the export of lumber from Ghana to Burkina Faso over the years would be supported by proper documentation from the Customs Division of the now Ghana Revenue Authority. The Plaintiff, acting through his lawyer, could have obtained certified copies from the said institution since he seems to know the dates the transactions took place. What of the defendant's alleged extended stay in PAN Hotel- is the bare assertion enough? Obviously not!
I have adverted my mind to the statement of the Supreme Court in Takoradi Flour Mills v Samir Faris (2005/2006) SCGLR 882 that a court can decide an issue on the evidence of a sole witness or party. At page 883 (holding 3) this was what the Court said:
"A tribunal of fact can decide an issue on the evidence of only one party. A bare assertion on oath by a single witness might in the proper circumstances of a case be enough to form the basis of a judicial adjudication. The essential thing is that the witness is credible by the standards set in section 80(2) of the Evidence Decree (ACT) 1975..."
The question is, will the bare assertions by the plaintiff herein of the material facts contained in his statement of claim suffice? To a large extent, I would say that the plaintiff could have done more than what he did by way of other credible evidence. He could have called witnesses of fact and tendered documents as I have already noted, for his case to be more convincing, but he did not!
As the Supreme Court rightly pointed out in Ackah v Pergah Transport (2010) SCGLR 728 at 731:
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 a 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 facts is more reasonable than its non-existence."
In the case at hand, in as much as the plaintiff 's credibility is not in issue, I find that his account on the investments done with his money as far back as the year 2000 without a receiving a pesewa by way of profit or benefit in kind is not in the least convincing. I will accept his evidence on the 1,500,000.00 which he invested in a joint lumber business with the defendant in January, 2000. However, his other assertions have not been adequately proved and i am unable to make any finding in his favour.
In the absence of any other evidence to the contrary, i will allow the plaintiff to recover the sum of 1,500,000.00 CFA from the defendant together with interest from the date of issuance of the writ of summons, which is 18/08/2014.
The evidence shows that the defendant converted 1,500,000.00 CFA given to him by the plaintiff into cedis at the commencement of their business. Therefore, it is only just and fair that the defendant's financial obligation towards the plaintiff be calculated in cedis instead of the CFA.
Accordingly, judgment is entered against the defendant for the cedi equivalent of 1,500,000.00 CFA together with interest at the prevailing bank rate from 18/08/2014 to the date of delivery of judgment. I further award post-judgment interest on the cedi equivalent of 1, 500,000.00 CFA at the prevailing bank rate from the date of delivery of judgment till date of final payment. For the avoidance of doubt, the bank of Ghana 91 days Treasury Bill rate is to be used as the prevailing bank rate.
The defendant has put the plaintiff to unnecessary expenses by his uncooperative attitude which unreasonably prolonged the trial. Having taken into consideration the provisions of Order 74 of C.I. 47 on the award of cost as well as all the circumstances of this case, I award cost of GH¢ 4,000.00 against the defendant in favour of the plaintiff.