JUDGMENT  
The Plaintiff is a limited liability company duly registered under the laws of the Republic of Ghana to carry out various businesses including the supply of building materials and other hardware.  The Defendant is a construction firm carrying out various constructions within the city of Accra.  
In the Plaintiff’s writ of summons and the supporting statement of claim, the Plaintiff claims against the Defendant, the following reliefs:     “(a) payment of the sum of GH¢178,500 being the cost of 5,100 bags of cement supplied the defendant company which defendant company has failed and/or refused to pay for. (b) Interest on the sum in (a) from the 23rd October, 2014 till date of final payment. (c) Costs.”  
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The material facts which gave rise to the matter as recounted in Plaintiff’s statement of claim are as follows.  Sometime in mid-2014, in fulfilment of a contract with the Defendant to supply cement on credit basis, payable on delivery, to the Defendant, Plaintiff supplied the Defendant with twenty-one (21) truckloads of cement, each truckload consisting of 850 bags of cement.  Upon delivery, the Defendant paid for fifteen (15) truckloads, leaving six (6) truckloads unpaid for.  These six truck loads consisted of a total of 5,100 bags of cement valued at GH¢178,500.00 at the unit cost of GH¢35.00 per bag.  Upon the failure of the Defendant to pay for the remaining cement as agreed, on 23rd October, 2014, Plaintiff sent a demand notice to the Defendant, who still refused to pay up.  The Defendant then instructed its lawyer to write a letter to the Managing Director of the Plaintiff Company and another gentleman named Rufai, an official of Defendant’s company admitting that even though the Defendant owed the Plaintiff, the Defendant would not honour this debt.  It is Plaintiff’s claim that it caused its lawyers to respond to the said letter.  Finally, Plaintiff avers that the Defendant Company, through its Managing Director, has evinced an intent not to pay up the debt unless it is compelled by this honourable court so to do.    
The evidence of the record establishes that on 10th February, 2014, Joseph K. Gyimah, Esq. of Kontonkyi Chambers filed an entry of appearance on behalf of the Defendant.  Counsel followed this up with a statement of defence filed on 25th February, 2015 with the registry of this Court.  
The following issues were set down for trial after pre-trial settlement failed: 1. Whether or not there was a contract for the Plaintiff Company to supply cement to the Defendant Company? 2. Whether or not Sheik Hassan is the Plaintiff’s Chief Executive and acted at all material times on Plaintiff’s behalf? 3. Whether or not truckloads of cement which remain unpaid for equal 5 or 6? 4. Whether or not the Defendant has admitted in correspondence to owing the GH¢178,500.00  5. Whether or not Plaintiff is entitled to its claims?   After pre-trial, on August 11, 2015, the case was referred to this court to conduct the trial.  It is noted, that on 26th November, 2015, Messrs. Cardinal Law Group, filed a Notice of Appointment as Solicitor with the registry of the Court on behalf of the Defendant.  Neither the Defendant nor 
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its newly appointed solicitors appeared in court to contest the trial notwithstanding the fact that there is proof on the record that the Defendant and/or its solicitors were at one time or the other served with hearing notices of the dates for trial and the Court’s Notes.  Yet, there is nothing on the record to support a finding that Messers. Cardinal Law Group subsequently withdrew their representation of the Defendant in this case.  Having failed to comply with the case management orders made by this Court, the statement of defence filed by the Defendant was struck out by the Court on 2nd March, 2016 with Order 32 rule 7A of the High Court (Civil Procedure) Rules, 2004, (CI 47) (as amended).  
In the circumstance, the only triable issue that is material to the disposition of this suit, in my view, is: 1. Whether or not the Plaintiff is entitled to its reliefs as endorsed on the writ of summons.   The general rule is that where a party to a civil suit raises issues that are essential to the success of his claim, he assumes the onus of proof, whether it is the plaintiff who asserts a fact or the defendant who makes a counterclaim.  See BANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176-182 where the court held that the onus of proof in civil cases depends upon the pleadings and the party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof. The court applied the case of HUYTON-WITH-ROBY U.D.C. v. HUNTER [1955] 2 All E.R. 398, C.A.  In the case of FAIBI v. STATE HOTELS CORPORATION [1968] GLR 471-480 the court also held that “… [t]he onus in law lay upon the party who would lose if no evidence was led in the case; and where some evidence had been led it lay on the party who would lose if no further evidence was led”.  The Evidence Act, 1975 (NRCD 323) (hereinafter, “NRCD 323”), encapsulates the foregoing principle in section 14 where it uses the term the “burden of persuasion” and provides that the asserting party must prove each fact of his claim, the existence or non-existence of which is essential to the claim or defence he is asserting.   
Section 12(1) of NRCD 323 provides a further element to the above stated general rule to the effect that in a civil case, such as the one in question, the burden of persuasion requires proof by a “preponderance of probabilities” defined in section 12(2) as “that degree of certainty of belief in 
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the mind of the tribunal of fact or the court by which it is convinced that the evidence of a fact is more probable than its non-existence”.     
From the foregoing, therefore, it is clear that the Plaintiff, to succeed on its claims, assumes the onus of proving its assertions against the Defendant.  
The Plaintiff adduced documentary evidence and the testimony of Sheik Hamza Musah, its Chief Executive and Managing Director as well as the testimony of Rufai Salis, the Chief Executive of Saifurusal Global Marketing Ltd., in support of its case.  In addition to recounting the facts as averred to in the Plaintiff’s statement of claim, Sheik Musah added that the payment for the fifteen (15) truckloads of cement were made to the Plaintiff through Saifurusal Global Marketing Ltd., as agent on behalf of the Defendant and that it was Mr. Salis of Saifurusal Global Marketing Ltd., who introduced Sheik Musah to the Managing Director of Defendant Company. To prove this claim, Plaintiff tendered into evidence, statements of its bank accounts from 3rd July, 2014 to 2nd July, 2015, showing inter-account transfers and other payments made into Plaintiff’s account by Saifurusal Global Marketing Company, marked into evidence as Exhibit “A”.  
Mr. Salis, PW1, corroborated the testimony of Sheik Musah in material parts.  He testified that sometime in mid-2014, he introduced Sheik Musah to one Mr. Ali, the chief executive of the Defendant Company.  According to Mr. Salis, he knew Sheik Musah as the two of them transacted business in the same bank on behalf of their respective companies.  He stated that he brokered the deal between the Plaintiff and the Defendant for the supply and delivery of twenty-one (21) truckloads of cement each consisting of Eight Hundred and Fifty (850) bags at a cost of ThirtyFive Ghana Cedis (GH¢35.00) per bag. Further, it is his testimony that the chief executive of Defendant Company suggested that since PW1 had a bank account in the same bank as the Plaintiff, and he being the one who brokered the deal, PW1 should allow the Defendant to pay for the cement delivered by the Plaintiff through PW1’s account so PW1 would then pay the Plaintiff on Defendant’s behalf.  According to PW1, the Defendant subsequently paid various sums covering payment for fifteen truckloads of cement as agreed into the company account of PW1 and he also transferred same to the Plaintiff Company’s account.  This testimony was supported by Exhibit “G”, statements of accounts of PW1’s company showing several inter account transfers 
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and other payments made by PW1 to the Plaintiff Company. It is PW1’s testimony that the Defendant failed to pay for the six remaining truckloads of cement.     
To prove its claim further, the Plaintiff tendered into evidence Exhibit “C”, “Demand to Account for the Sum of GH¢140,000.00”, a letter written by Joseph K. Gyimah, Esq., Defendant’s previous solicitor, in which he states as follows: “…I am instructed to say that the GH¢178,000.00, owed by my client would only be paid after you and Pee have accounted for the money paid to clear the goods…”, and Exhibit “D”, letter written by Plaintiff’s solicitor in response to Exhibit “C” demanding, among other things, the outstanding debt of GH¢178,000.00 admitted to by the Defendant but which remained due and unpaid.     Plaintiffs’ documentary evidence was corroborated by the testimony of Plaintiff’s representative given on oath to this court.  As the Defendant was not in court to cross examine the Plaintiff’s witnesses, nor did it file any evidence to controvert the testimony of these witnesses and/or the documentary evidence of the Plaintiff, the court is left with no option than to believe the testimony of the Plaintiff’s witnesses.     In stating thus, I am guided by the holding of the court in the leading case of MAJOLAGBE v. LARBI [1959] GLR 190 which supports the principle that when a party makes an averment in his pleading which is capable of proof in a positive way and the averment is denied, that averment can be sufficiently proved by testimony on oath supported by some corroborative evidence.  See further the cases of KLUTSE v. NELSON [1965] GLR, 537, SC and ZABRAMA v. SEGBEDZI [1991] 2 GLR 221, CA.  
It is trite law that for a valid contract to exist the parties must agree as to all the material terms of the contract or the circumstances surrounding the contract must be such that it may be reasonably inferred that the parties were tacitly agreed as to the terms of the contract. There should also be the four main elements, that is, (i) the parties ought to have capacity to enter into the contract, (ii) there must be offer and acceptance of key terms of the contract on which the parties are ad idem, (iii) there must be consideration for the exchange of goods or services and (iv) the intention of the parties to create legal relations must be evident.  
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  It is not in issue that there was an agreement between the parties for the sale and distribution of cement.  This is because even in the absence of a written agreement to evince the intentions of the parties, it can be reasonably inferred, from the facts and the evidence before me, that the parties were tacitly agreed as to the supply and purchase of cement.  Indeed, PW1 corroborated Plaintiff’s assertions with his testimony and the bank statements he provided the Plaintiff, Exhibit “G”.  I note here that there is no evidence on the record to contradict the testimony of PW1 that these transfers were made to Plaintiff on behalf of the Defendant at the latter’s request.  Additionally, why would the Defendant’s previous solicitor admit to Defendant owing the Plaintiff in Exhibit “C” if there was no business transaction ongoing between the parties?    
One of the pillars of the law of contract is the doctrine of sanctity of contracts. This means that when qualified parties have consciously entered into a contract, the court cannot do otherwise than to enforce the contract unless there are in existence conditions that when proven will nullify the agreement. These conditions include fraud, frustration and any such acts which will prevent the court from indorsing the contract. Since the statement of defence of the Defendant was struck out and the Defendant also failed to utilise the opportunity to state its case through cross-examination of the Plaintiff’s representative and PW1, this court finds as a fact that by the undisputed evidence before the court, the parties reached an agreement for the supply of cement on credit basis, payable on delivery, to the Defendant.  I am also satisfied that Plaintiff supplied the Defendant with twentyone (21) truckloads of cement, each truckload consisting of 850 bags of cement out of which the Defendant paid for fifteen (15) truckloads, leaving six (6) truckloads unpaid for valued at GH¢178,500.00.    
The Plaintiff performed its part of the agreement by delivering the cement to defendant, which defendant accepted. By performing its part of the agreement, this court owes a duty to compel the performance of the defendant’s side of the agreement, namely, to pay for the remaining six truckloads of cement valued at GH¢178,500.00, which debt was admitted to by Defendant through its previous solicitor by Exhibit “C”.  In holding thus, I take inspiration from the words of Sir Thomas Erskine Holland, a former Oxford professor, in his book on Jurisprudence that “when the law enforces contracts it does so to prevent disappointment of well-founded expectations, which 
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… usually arise from expressions truly representing intention …”.  See JURISPRUDENCE, Holland, 12th ed. (1916) at p. 262.  
I therefore find that the Plaintiff has met its burden of proving that the Defendant owes it the sums of money claimed as per the reliefs (i) and (ii) of its writ of summons.    
Consequently, I am satisfied that the Plaintiffs’ action succeeds.  Judgment is entered in favour of Plaintiff in respect of reliefs (i) and (ii) as endorsed on its writ of summons.     
I award costs in the sum of GH¢15,000.00 in favour of the Plaintiff against the Defendant.     
(Sgd)        JUSTICE JENNIFER ABENA DADZIE     JUSTICE OF THE HIGH COURT     (COMMERCIAL DIVISION) 
COUNSEL:     RAYMOND BAGNABU, ESQ., OF PWAMANG & ASSOCIATES, COUNSEL FOR PLAINTIFF CARDINAL LAW GROUP, COUNSEL FOR DEFENDANT  
CASES REFERRED TO:  
BANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176-182 
HUYTON-WITH-ROBY U.D.C. v. HUNTER [1955] 2 All E.R. 398, C.A.   
FAIBI v. STATE HOTELS CORPORATION [1968] GLR 471-480 
MAJOLAGBE v. LARBI [1959] GLR 190 
KLUTSE v. NELSON [1965] GLR, 537, SC  
ZABRAMA v. SEGBEDZI [1991] 2 GLR 221, CA. 