INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(599, 'FIRST ATLANTIC BANK LIMITED\r\nVERSUS  \r\nVIVIAN ATAKORA (a.k.a.) MRS. VIVIAN MARFO) ', 'JUDGEMENT   \r\nThe facts that have spawned the present litigation are fairly straightforward.  The Defendant, a customer of Plaintiff bank applied for and was granted an overdraft facility in the sum of Twenty Thousand Ghana Cedis (GH¢20, 000.00) to augment her working capital. Plaintiff avers that the overdraft facility was to attract an agreed interest rate of 23% per annum with a penal rate of 3.5% over and above the agreed rate in the event of the Defendant’s account being overdrawn or payments becoming overdue. The facility granted was secured with a mortgage over Defendant’s property situate at Ablekuma, Accra.  It is the case of the Plaintiff that Defendant, at  the expiration of the facility, had fallen into arrears of  payment and that her indebtedness to Plaintiff stood at One Hundred and Ninety-Three Thousand, Six Hundred and Sixty-Three Ghana Cedis, Twelve Pesewas (GH¢193,663.12) as at 31st October, 2014.  The Defendant, however had in spite of repeated demands on her to make good her indebtedness failed or refused to do so.  It is for this reason that the Plaintiff on \r\n2  \r\nthe 19th of February, 2015 issued the present writ, claiming the followings against Defendant:  \r\na) An order for payment of the sum of One hundred and Ninety Three thousand, Six Hundred and Sixty Three Ghana Cedis, Twelve Pesewas (193, 663.12) being the balance due and owing on the facilities granted Plaintiff.  \r\nb). Interest on the said sum of One Hundred and Ninety Three Thousand and Sixty three Thousand Cedis (193,663.12) at the agreed interest rate of 26.5% per annum from 16th September, 2014 to date of final payment.  \r\nc.) Further or in the alternative an order for judicial sale of Defendant’s property described in the Statement of Claim and used as collateral security for the said facility.  \r\nd) Costs.  \r\nThe Defendant disputes the Plaintiff’s claim.  Her defence is basically that the Plaintiff neither explained the terms of the facility to her nor advised her to engage legal Counsel even though she is illiterate.  She admitted taking an overdraft facility of Twenty Thousand Ghana Cedis (GH¢20, 000.00) but explained that the  facility was a “supplier credit” by which Plaintiff  made payments directly to suppliers  and debited her  account  as and when such payments were made and after she had taken delivery of the goods in question.  She denied Plaintiff’s assertion that the overdraft had fallen into arrears and contended that the balance attributed to her was wrong and overstated.  \r\nThe following issues were set down for determination at the trial.  \r\na. Whether or not Defendant as at the 31st day of October, 2014 was indebted to the Plaintiff in the sum of One Hundred and Ninety-Three Thousand, Six Hundred and Sixty-Three Ghana Cedis, Twelve Pesewas (GH¢193,663.12).  \r\nb. Whether or not debits to the Defendant’s account were authorized by the Defendant.  \r\n3  \r\nc. Whether or not the facility termed by the Plaintiff as an overdraft facility was in real terms a supplier’s credit.  \r\nd. Whether or not Defendant is literate.  \r\nAt the trial, Plaintiff bank was represented by its head of recoveries, BEDFORD AKUFFO DUAH. His evidence was essentially in line with his pleadings. He tendered in evidence the following exhibits:  \r\n EXHIBIT A – THE FACILITY LETTER  \r\nEXHIBIT B AND B1 - DEFENDANT’S STATEMENT OF ACCOUNT  \r\nEXHIBIT C - INDENTURE OF DEFENDANT’S PROPERTY SITUATE AT ABLEKUMA, ACCRA PROVIDED AS COLLATERAL SECURITY FOR THE FACILITY  \r\nEXHIBITS D AND D1 - COPIES OF CHEQUES DATED THE 11TH DAY OF SEPTEMBER, 2006 AND 10 SEPTEMBER, 2006 RESPECTIVELY.  \r\nThe witness under cross examination explained that the facility being an overdraft had no regular structured payment apart from the requirement that it had to be retired by on the 31st day of August 2007.  He denied that EXHIBITS D and D1 had been tampered with by officials of the Plaintiff bank and insisted that both cheques were issued by the Defendant. He described the amendments made to EXHIBIT D as “corrections” and not alterations.  He stated further that even though it was the generally accepted practice for a customer to countersign amendments or changes effected to a cheque issued by that customer, the customer could based on an  understanding reached with the Branch Manager of the bank, authorize the said manager to counter sign on her behalf. He alleged that EXHIBIT D was countersigned by the Branch Manager based on such an agreement reached between the Defendant and the said manager.  He vehemently denied that Defendant’s claim that she is illiterate and was emphatic that EXHIBITS D and D1 were duly authorized by Defendant. Contrary to the Defendant’s assertions, he maintained that the Plaintiff bank, was only under a duty to carry out the instructions of the customer, in this case, the Defendant, without having an obligation to ascertain the exact \r\n4  \r\npurpose for which those payments were being made. Consequently, Plaintiff was in no position to know whether or not the goods for which payment was effected had been supplied to the Defendant or not.  \r\nThe Defendant, who testified that she had been a customer of Plaintiff bank for over Nine (9) years, admitted in her testimony that she indeed applied for and was granted an overdraft facility of Twenty Thousand Ghana Cedis (GH¢20, 000.00) as evidenced by EXHIBIT A.  According to her, the facility was subsequently reviewed upwards to Thirty Thousand Ghana Cedis (GH¢30,000.00). The fact of the upward review is  neither pleaded nor borne out by the evidence on record. In line with her pleadings she contended that, the Plaintiff bank only permitted utilization of the facility for the payment of her suppliers who the bank insisted, were supposed to be account holders of Plaintiff bank. By the course of dealing, she issued cheques directly to her suppliers upon taking delivery of goods, whereupon, the suppliers in turn presented the cheques at the Plaintiff bank for payment.  According to her, the facility was to be liquidated by deposits she made into her current account as and when she made sales.  She alleged that she had made such numerous deposits towards defraying the overdraft that, she was, until she received the demand notice from the Plaintiff, under the impression that she had fully paid off the facility.  Further investigations conducted with the assistance of her sons revealed that she had been debited with two transactions that she did not authorize. Under cross examination, Defendant admitted that she had no documentary proof that she was under any compulsion from the Plaintiff to only buy from certain designated suppliers. She however maintained that the payments allegedly made on her behalf by Plaintiff to the suppliers by name Lizeen and Joy Trace were without her knowledge or authorization as she had not been supplied with any goods by them.  \r\nIn the light of the matters in dispute I propose to deal first with issue (d) which is whether or not Defendant is literate. I consider the said issue fundamental to the resolution of the present suit in view of the established legal principle that a Party seeking to bind an illiterate to a document is under an obligation to show that the illiterate understood the meaning and effect of the document he or she is alleged to have signed.  The Defendant pleads in paragraph 3 of her Statement of Defence that she is illiterate. She laments that the terms of the facility were neither properly \r\n5  \r\nexplained to her by Plaintiff nor was she advised to seek legal Counsel before executing same. It is not clear to me from the pleadings, what detriment Defendant claims to have suffered as a result of this alleged failure on the part of the Plaintiff bank but it remains to be pointed out that apart from the bare assertion of Defendant that she is illiterate, there is no evidence before me to substantiate this allegation.  By the Defendant’s own evidence, her relationship with the bank preceded her application for the overdraft facility in question. There is no evidence before this Court, that the Defendant in her previous dealings with the Plaintiff bank had ever required the assistance of the Plaintiff or any other person in order to appreciate the meaning or effect of any document. Indeed, under cross-examination she stated that she went to the bank alone whenever she had to effect a transaction at the bank.  \r\nOne fact that Defendant does not deny is that she duly signed EXHIBIT A herself. She does not allege fraud or misrepresentation against the Plaintiff bank. Neither does she allege duress or undue influence.  Even though she avers she was never given a copy of the terms and conditions of the facility, she demonstrates her knowledge and understanding of her obligations under the facility in paragraphs 5, 6 and 7 of her witness statement. Her understanding of the nature of the facility is further evidenced by the voluntary handing over of the title documents covering her property at Ablekuma to the Plaintiff bank. Any claim therefore, by the Defendant that she did not understand the terms of the facility will therefore be of no avail to her since her conduct proves the contrary. In the case OF REIDORF  alias SAKER V REIDORF [1974] 2GLR 38, the Court held that the wife, an illiterate could not rely on her illiteracy to repudiate the documents she had voluntarily executed when there was proof that she was fully aware that the documents bore the joint names of herself and her husband.  See also the case of SWISS AFRICAN TRADING CO. V ARYEE (1961) GLR 185. On the basis of the foregoing, I reject the Defendant’s claims that she did not understand the terms of the facility due to her alleged illiteracy and find that she fully appreciated the meaning and effect of EXHIBIT A before duly executing same.  She is therefore bound by its terms.  \r\nI now proceed to deal with issue (c) which is whether the facility termed an overdraft facility by Plaintiff is a supplier’s credit.  \r\n6  \r\n In my candid opinion, put against the facts of this case I am unable to appreciate how this issue aids in the resolution of the issues at hand.  Put simply, my understanding of a supplier’s credit is where goods are supplied to a purchaser by a seller upon an agreement that payment for the said goods or services will be made at a future date. The fact that such an agreement can only exist between a purchaser and a seller is quite clear and needs no further elaboration. Under such a facility the bank only steps in, based on a loan agreement entered into with the purchaser, to effect payment to the seller on the purchaser’s behalf.  \r\nThe Defendant contends that the agreement reached with the Plaintiff bank was a supplier’s credit agreement, in that, Defendant was by the terms of the agreement required to apply proceeds of the facility solely towards the purchase of goods from specified suppliers, failing which, the Plaintiff bank will refuse to pay for the said purchases. I find that this allegation is not supported by any evidence on record. EXHIBIT A, the facility letter clearly spells out the purpose for which the facility was granted i.e. to support working capital. A careful examination of EXHIBIT A does not disclose that the facility set down the purchase of goods from specified suppliers as a condition precedent to the grant of the facility.  In any event, it is trite learning that extrinsic evidence will not be admitted to vary or contradict the terms of a written document.  See Sections 25 and 177 of the Evidence Act, Act 323.  I therefore do not think Defendant has succeeded in establishing that she was under the facility required to buy only from suppliers designated by the Plaintiff.  However, as stated earlier, I do not see the relevance of the said issue because I do not think that it in any way affects the obligations of the Parties under EXHIBIT A.  In the case of SARFO V GHANA COMMERCIAL BANK [1992] 2 GLR 8, LUTTERODT J (as she then was) referred with approval to the case of CUTHBET V ROBARTS, LUBBOCK &CO [1909] 2 CH 226, where Cozens–Hardy held that if a customer draws a cheque in excess of an amount standing to the credit of his current account, that amounted to an overdraft which is really a request for a loan. Quite clearly as stated in the case of BARCLAYS BANK V SAKARI, [1996-97] SCGLR 639, under a loan agreement. “The obligation of the bank was to advance the money...and that of the Defendant was to repay the loan together with interest if any”. The purpose for which the loan, in this case the overdraft facility, was taken, has absolutely no bearing on the obligations of the Parties under the facility, in my opinion.  \r\n7   \r\nI now proceed to determine issues (a) and (b) which I intend to deal with together since the said issues in my view are intertwined. The said issues are (a) whether the Defendant as at the 31st day October, 2014 was indebted to the Plaintiff in the sum of One Hundred and Ninety-Three Thousand, Six Hundred and Sixty-Three Ghana Cedis, Twelve Pesewas (GH¢193,663.12) and (b) whether or not the debits to the Defendant’s account were transactions authorized by the Defendant.  \r\nThe Plaintiff’s witness testified that the Defendant disputes two transactions on her account. He however insists that her account statement clearly shows that she authorized the said payments.  The two disputed cheques were tendered as EXHIBIT D AND D1.   \r\nNow, I will state without mincing words that, I find the Defendant’s objection to being debited with the amount on EXHIBIT D completely valid and unanswerable. It is trite learning that in the business of banking, the signature of a drawer is an essential element of a cheque.  Under 63 of the Bills of Exchange Act, Act 55, where a bill of exchange is altered without the assent of the Party liable on the bill, the bill is avoided except against the Party who has personally made, authorized or assented to the alteration. It is quite patent on the face of EXHIBIT D that the original payee VICTORY LINE ENT has been cancelled out and substituted with another payee by name JOY TRACE. Curiously, and contrary to established banking practice, the said cancellation has been countersigned by someone other than the drawer of the cheque, the Defendant in this case.   \r\nUnder cross-examination, Plaintiffs representative stated that the said “correction” had been effected by the Branch Manager of Plaintiff.  Plaintiff’s witness’ relentless efforts at avoiding the use of the word “alteration” did not go unnoticed by this Court. The Black’s Law Dictionary [8TH edition] defines an alteration as follows: “An act done to an instrument, after its execution, whereby its meaning or language is changed especially the changing of the term of a negotiable instrument without the consent of all the Parties to it…. Material alterations void an instrument but immaterial ones do not…An alteration is material if it (1) changes the….liabilities or duties of any Party (as by adding or removing the name of a maker, drawer, \r\n8  \r\nendorser, payee or cosurety). Against this definition, I am in no doubt at all that the change effected to EXHBIT D was nothing short of an alteration.   \r\nIt is also necessary to refer to the exchange that ensued between Counsel for the Defendant and the Plaintiff’s representative during cross-examination The following responses were given by the Plaintiff’s representative under cross- examination: Q. So the Branch Manager did the alteration on EXHIBIT D. A. My Lord, per the evidence on EXHIBIT D I will not call it an alteration. Q. So as a banker, what will you call it? A. My Lord per what I see it can be called a correction.  Because there is a signature signed beside the cancelled name.     \r\nQ. How many years have you worked as a banker? A. My Lord, 11years. Q. So with 11 years’ experience as a banker tell this Court what happens when a customer issues a cheque and there is a need to amend or change something on it. What is the procedure?  \r\nA. I will put it from two angles.  One is the customer would bring a new cheque to replace the existing one or based on the relationship between the Branch Manager and the customer, a telephone conversation can be done and the result would come forth as it seemed in EXHIBIT D.        \r\nQ. So the customer is never made to countersign and amend.      \r\nA. My Lord, it also depends on the relationship between the Branch Manager and the customer but technically there should be a countersign.  \r\nQ: I am putting it to you that that is the standard procedure that there should be a countersign by the customer.  \r\nA. My Lord, I don’t admit that totally.  \r\nQ. And that, in the case of EXHIBIT D, the Defendant did not do such countersign.  \r\nA. My Lord, yes, on the face of EXHIBIT D, the Defendant did not countersign.        \r\nQ. So that could not have been her authorization.  \r\nA. My Lord, it could have been her authorization per telephone conversation.  \r\nQ. I further put it to you that there was no such telephone conversation between the Defendant and your manager.  \r\nA. My Lord, I cannot confirm that, since the Branch Manager is not at post.  \r\n9  \r\nQ. But whatever telephone conversation you had in your bank are recorded.  \r\nA. My Lord, once there is a telephone conversation and agreement is reached, the manager goes ahead and does what the customer has said.  \r\nQ. You have not answered my question.  \r\nA. My Lord, what I am trying to say is those conversations are not fully recorded on the cheque or any paper as you are saying.  \r\nQ. So you mean you cannot trace any evidence of such conversation.  \r\nA. My Lord, yes, we cannot trace it.                  \r\nThe pith of the Plaintiff’s case as regards EXHIBIT D, is that the alteration to the said exhibit was effected on the instruction of Defendant. This claim has been stoutly denied by the Defendant. The general principle of the law is that he who asserts must prove. In the light of Defendant’s denial, the onus fell on the Plaintiff to prove that the alteration effected to EXHIBIT D was done upon the authorization of the Defendant.   \r\nIn the case of OKUDZETO ABLAKWA & ANOR [2012] 2 SCGLR 845, the Court held at PAGE 867 as follows: “…If a Party 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”.  \r\nSee also SECTIONS 14 AND 17 of the Evidence Act, Act 323. Unfortunately, Plaintiff’s representative dismally failed to lead any evidence in proof of his allegation that the Defendant authorized the alteration and consequent payment of the amount specified in EXHIBIT D to Joy Trace.  The Defendant therefore cannot be held liable on EXHIBIT D and I so hold.   \r\nThe next issue that faces this Court relates to EXHIBIT D1. The Defendant in similar vein, denies ever issuing EXHIBIT D1.  The grounds upon which she challenges the validity of EXHIBIT D1 is firstly, that she never authorized the said payment as she  had no  business transaction with Lizeen, the payee on that cheque.  Secondly she contends that the said Lizeen never received the said amount for which she was debited.  On the evidence, the Defendant appears to be levelling a charge of forgery \r\n10  \r\nagainst the Plaintiff bank.  To buttress her stance, she relies on the simplicity of her signature which she claims renders it susceptible to forgery.  It is noted that, apart from EXHIBIT D1, Defendant does not dispute the authenticity of her signatures on any of the other exhibits tendered in this Court.  Fortified by authorities such as FENUKU V JOHN TEYE [2001-2002] SCGLR 985 and STATE V LAWMAN [1961] GLR (Pt II) 689, I have taken the time to carefully examine and compare Defendant’s signature in EXHIBIT D1 with her signatures in EXHIBITS D and A, and I must say that I find a striking similarity between the disputed and the accepted signatures. Given this fact, I am unable to see how even the Plaintiff bank could have detected that Defendant’s signature had been forged, assuming without admitting that her allegations are true.  In accordance with sound banking practice, a cheque that has been duly signed by the drawer is sufficient authority to the drawee bank to pay  the amount specified thereon to the payee of the cheque and I am satisfied that this is exactly what the Plaintiff bank did in this case.  The standard of care expected of the Plaintiff is one of an ordinary prudent banker and not that of a detective. It follows therefore that Defendant will be presumed to have duly issued EXHIBIT D1 and will be held liable on same unless she leads credible and cogent evidence in rebuttal of the said presumption. SEE Section 20 Of Evidence Act, NRCD 323.   \r\nDuring cross examination, Defendant was asked: Q:  You have just said you were granted an overdraft facility. A:  That is correct. Q: And it is also correct that every payment on your account was by a cheque signed by you. A:  That is correct. Q:  Where do you usually sign these cheques. A:  I work with five people so when it is time to make payments I take the cheque to the bank and sign them  Q:  So I am correct that the cheque book is always in your possession. A:  That is correct.  \r\nDuring his cross-examination of the Plaintiff’s representative, Counsel for Defendant alluded to the fact that EXHIBIT D1 was the “handiwork” of the officials of Plaintiff bank.  Put another way, Counsel sought to suggest that the said Exhibit had been \r\n11  \r\nforged by the Branch Manager of the Plaintiff bank.  It is trite learning that under Section 13 Of Evidence Act, NRCD 323 any allegation of forgery or fraud will have to be proved beyond reasonable doubt. SEE THE CASE OF SUSU BAMFO V SINTIM [2012] 1 SCGLR 136.  Having admitted that the cheque book was always in her possession, the Defendant appears to have lost sight of the burden thrust on her to produce evidence in explanation of how a leaflet from the said cheque book which was always under her care and custody ended up in the hands of Plaintiff’s Branch Manager or anyone else for that matter. This, she failed to do. I am also not persuaded by Counsel for Defendant’s contention that the writing of the name Kofi without more, instead of what he termed a “signature” amounted to an irregularity and evidence of fraud on the part of Plaintiff bank’s officials. It is worth pointing out that the Bills of Exchange Act, ACT 55 does not define the term “signature”.  The Black’s Law Dictionary [8th edition] however defines a signature as “a person’s name or mark written by that person or at that person’s direction”.  It further defines a signature in Commercial Law as “any name mark or writing, used with the intention of authenticating a document.”  In the light of this definition, a signature does not necessarily mean writing a person’s full name, first name or surname. In my thinking, even the initials of a person alone may be sufficient.  I therefore cannot share the view of Counsel that the absence of a “signature” on the pay-slip in EXHIBIT D1 throws doubt on the authenticity or validity of EXHIBIT D1.  I should also add for good measure, that the fact that Lizeen is alleged never to have received payment on EXHIBIT D1 does not in any way substantiate Defendants claim that she did not issue EXHIBIT D1.  In any event, Lizeen was never brought to confirm or deny Defendant’s assertion.  EXHIBIT B1 confirms that payment was duly effected on 10/8/2006 to LIZEEN in line with EXHIBIT D1.  I accordingly, make a finding of fact that Defendant issued EXHIBIT D1 and is therefore liable on it.  \r\nThis brings me to the final issue which is whether the Plaintiff was indebted to the Defendant in the sum of One hundred and Ninety Three thousand, Six Hundred and Sixty Three Ghana Cedis, Twelve Pesewas (GH 193,663.12) as at 31st October, 2014. Before proceeding to determine the said issue, I will like to comment on how the evidence on record demonstrates a lack of candour on the part of the Defendant. In paragraph 7 of the Defendants witness statement filed on the 29th February 2016, she testifies that the service of the demand notice of the amount outstanding on her \r\n12  \r\naccount left her confused since she was under the impression that she had fully defrayed the debt owed on the facility.  On the 9th of May 2016, however, she stated under cross-examination as follows:  \r\n“Initially I thought I owed the bank but when I went for the statement I realized I do not owe them because Thirty Thousand Ghana Cedis (GH¢30, 000.00) had been made to LIZEEN and Thirty Thousand Ghana Cedis (GH¢30, 000.00) to JOYCELYN which made me realize I do not owe the bank.”  \r\nThe Defendant clearly appears to be speaking from both sides of her mouth. In one breath she claims that she believed she had fully paid off the facility due to the “numerous sales deposits” she had made into her account.  In the same breath, she alleges that she thought she owed until she discovered that she had been wrongly debited with payments she did not authorize.  I do not believe the Defendant when she says that the bank took no steps to recover the debt from her. But even if they did not, did it not behove her, as an honest and diligent customer who had voluntarily applied for and obtained the facility, to take steps to pay off the debt she owed the Plaintiff?  The fact that Defendant did not even take steps to recover her title documents deposited with Plaintiff as collateral leads me to infer that she knew and understood that she still had not discharged her obligations under EXHIBIT A to the Plaintiff  What remains now to be determined is the question of how much is owed by the Defendant to Plaintiff bank.  By my examination of EXHIBITS B and B1, it appears to me that Counsel for the Defendant has taken a very simple view of the matter by concluding that the amount allegedly owed by Defendant is the total sum of EXHIBITS D and D1 put together with interest thereon.  As Plaintiff’s representative rightly pointed out, the facility being an overdraft does not enable one to specify particular transactions as constituting the debt until the expiry of the facility when a debit on the account will show the amount owed by the customer. Thus, it cannot be said with any certainty that the amount outstanding is Sixty Thousand Ghana Cedis (GH¢60, 000.) together with interest thereon.   \r\nIn the result, for the reasons advanced in this judgement, I enter judgement for the Plaintiff in respect of relief (a) less the sum of Thirty Thousand Ghana Cedis (GH¢30, 000.00) being the amount paid to Joy Trace which was wrongfully debited to Defendants account by the Plaintiff, together with any interest worked thereon.  \r\n13  \r\nThe Parties are to compute the amount payable by the Defendant after the said deduction with the assistance of the Director of Finance of the Judicial Service.  \r\nb) Interest is to be paid on the said amount at the agreed interest rate of 26.5% per annum from the 16th day of September, 2014 until date of final payment.  \r\nc) Failing this and in the alternative, I order the judicial sale of Defendant’s Property situate at Ablekuma, Accra which is more particularly described in the Statement of Claim and used as collateral security for the facility granted Defendant.  \r\nIn view of evidence of a failure on the part of the Plaintiff bank to exercise reasonable care and skill in the discharge of its duties to the Defendant, I award Plaintiff nominal costs of Five Thousand Ghana Cedis (GH¢5000.00).   \r\n          (SGD) MRS. AKUA SARPOMAA AMOAH    JUSTICE OF THE HIGH COURT   \r\n       ', 'links/cases/FIRST ATLANTIC BANK v VIVIAN ATAKORA.pdf', 'Yes', '', '2016', 'high', '', 'AKUA SARPOMAA AMOAH (MRS), J', '', '', 'BFS/88/2015', '', '', 'High Court, Accra', '2016-06-28', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(600, 'FORMS CAPITAL LTD\r\n    VRS  \r\n1. FREEMAN GT COMPANY LTD. 2. WILLIAM OPARE SAFORO 3. SAMUEL AWUKU FREEMAN 4. VOLTA RIVER AUTHORITY ', 'JUDGMENT  \r\nThe liability of the first three defendants in this suit has already been settled by the court upon an application for judgment in default of defence mounted by the Plaintiff. The court differently constituted granted the prayer of the Plaintiff in terms of the following reliefs endorsed on the Plaintiff’s writ of summons:  \r\na. Payment of the sum of Twenty Four Thousand, Five Hundred and Fifty Nine Ghana Cedis (Gh¢24.559.00) being sum outstanding on the loan as at 31st May, 2014 on loan granted to the 1st defendant repayment of which was guaranteed by the 2nd and 3rd defendants.  \r\nb. Payment of the sum of Gh¢24.899.00 being sum outstanding on the second loan as at 6th June, 2014 on loan granted the 1st defendant repayment of which was guaranteed by the 2nd and 3rd defendants. \r\n \r\n   \r\ne. Interest on the 1st loan at the contractual rate of ten percent (10%) per month from 1st June, 2014 to date of final payment  \r\nf. Interest on the second loan at the contractual rate of ten percent (10%) per month from 7th of June, 2014 to date of final payment.  \r\ng. Cost of a full recovery basis.  \r\nWhat is left in this suit for determination is relief c. on the endorsement on the writ of summons and which is stated as follows:  \r\n“A declaration that the Plaintiff relied on the undertaking of the 4th defendant to pay the contract sum in joint names of the Plaintiff and the 1st defendant in taking a decision to grant the loan to the 1st defendant”.  \r\nThe background to the claim of the Plaintiff can be discerned from the 22 paragraph statement of claim that accompanied the issuance of the writ. Plaintiff claims that per a facility letter of 21st of August, 2012 it advanced a loan of Gh¢25.000.00 to the 1st defendant for the purposes of executing a contract awarded by the 4th defendant to the 1st defendant with the repayment period being three months. According to the Plaintiff the loan should have been repaid by 20th of November, 2012. The 4th defendant undertook to pay the contract sum in the joint names of 1st defendant and the Plaintiff and it was that undertaking relied on by the Plaintiff that informed its decision to award the contract to the 1st defendant. To plaintiff, 1st defendant later requested for a further loan to enable it complete the contract 4th defendant awarded it and it did accede to that request and made a further advancement of Gh¢15.000.00 to the 1st defendant. In Plaintiff’s reckoning the 1st defendant has failed to make good its repayment terms and it has come to its notice that 4th defendant has gone ahead to make payments not in terms of the undertaking it gave to make payment in the joint names but has reneged and made it to the 1st \r\n \r\n3 | P a g e  \r\ndefendant. And having breached the terms of its undertaking the Plaintiff is of the opinion that 4th defendant is liable to pay the sums of monies together with the interest claimed by the Plaintiff.  \r\n4th defendant has vehemently resisted and denied the claim of the Plaintiff as not disclosing any reasonable cause of action against it claiming that it is neither a party to the contract between Plaintiff and 1st defendant nor did it guarantee to assume the debt of 1st defendant. To 4th defendant it is a total stranger to the contract and therefore does not owe any legal obligation to the plaintiff.  \r\n4th defendant then proceeded to set out the level of its involvement in the transaction between the Plaintiff and the 1st defendant that by a letter dated 31st of October, 2012; the 1st defendant instructed the 4th defendant to make payments regarding the award of its contract for the renovation of its property in the joint names of 1st defendant and the Plaintiff. And it subsequently communicated the payment instructions given it to the Plaintiff. 4th defendant further claims that before the completion of the contract it awarded the 1st defendant could be completed, the 1st defendant per another letter revoked the payment instructions and ordered it to make payment in the joint names of the 1st defendant and Zenith bank. And as there was no privity of contract between it and Plaintiff, it dutifully carried out the last payment instructions of the 1st defendant and paid the contract sum in the joint names of 1st defendant and Zenith Bank. And accordingly Plaintiff has no claim against it in the absence of any contractual obligations between the two.  \r\nAs the pre trial conference failed to settle the issues between the parties the following three issues were agreed for determination before the court and they were:  \r\n1. Whether or not the 4th defendant’s letter of undertaking to pay the contract sum in the joint names of Plaintiff and the 1st defendant is binding on 4th Defendant.  \r\n \r\n4 | P a g e  \r\n2. Whether or not the Plaintiff relied on this undertaking to advance loans to 1st defendant.  \r\n3. Whether or not the Plaintiff has a cause of action against the 4th Defendant   \r\nEVALUATION OF THE EVIDENCE AND ANALYSIS OF THE LAW The evaluation of the evidence will have to first determine whether what proceeded from the 4th defendant can be claimed to be an undertaking in law before determining its net effect.  Plaintiff who bore the burden of proof testified through Sylvester Inkoom. From the evidence of Plaintiff’s representative he noted that the two loans of Gh¢25.000.00 and the Gh¢15.000.00 were disbursed to the 1st defendant only after it had received a letter of undertaking from the 4th defendant. In support of Plaintiff’s case is Ex ‘A’ which is a letter from the 4th defendant to Plaintiff that the 4th defendant was going to comply with instructions from the 1st defendant to pay the contract sum in the joint names of Plaintiff and the 1st defendant. Exhibit ‘A’ is dated the 6th of November, 2012. There is also Ex ‘B’ being an internal memo from 4th defendant’s Town Manager to its Area Finance Manager regarding instructions of 1st defendant to pay the contract sum in joint names.   \r\nCould it be said that the Plaintiff discharged its burden of proving its case on the balance of probabilities for the burden to have shifted to the 4th defendant? Plaintiff’s representative had indicated that the two loans had been disbursed based on Ex ‘A’ written by the 4th defendant and without it the loans would not have been given to the 1st defendant as it claimed to have relied on what 4th defendant gave it to approve the loans. However, in paragraph 4 of the witness statement of Plaintiff’s representative he states that the first loan of Gh¢25.000, the contract or facility letter to the 1st defendant was on the 21st of August, 2012. He also conceded in cross examination that the cheque for the first loan, which was admitted as Ex ‘7’ was paid to the 1st defendant on 23rd August, 2012. But Ex ‘A’ which seems to be the trump card of the Plaintiff was written by the 4th defendant on \r\n \r\n5 | P a g e  \r\nNovember 6, 2012. Counsel for 4th defendant was accordingly spot on in his cross examination of Sylvester Nkoom when he pointed out that Ex ‘A’ could not have been the reason for the payment of the money of Gh¢25.000 in the following:  \r\n“Q: Did you look at the contract letter from the 4th defendant to the 1st defendant?  \r\nA: My lord I looked at it  \r\nQ: Now the contract letter is dated the 24th of October, 2012 and you paid a cheque on the 23rd of August 2012, is that true   A: Yes my Lord ...  \r\nQ: I put it to you that you did not rely on any undertaking from the 4th defendant to pay this cheque to the 1st defendant   \r\nA: No my Lord ...”  \r\nWith the 4th defendant’s letter having been written in November, 2012 and the facility agreement for Gh¢25.000 having been made in August 2012 followed by the cheque to the 1st defendant in August 23, 2012; it cannot be correct that the disbursement of the first loan of Gh¢25.000 to the 1st defendant was in anyway influenced by Ex ‘A”. Sylvester Nkoom himself made a volte face when confronted with this issue in the following:  \r\n“Q: I still want to suggest to you that you did not rely on any undertaking by the 4th defendant to pay the first loan of Gh¢25.000 to the 1st defendant   A: We didn’t”   \r\nThis is a complete departure from the allegations made in the pleadings of the Plaintiff that Plaintiff relied on an undertaking from 4th defendant for the approval of the two loans. I accordingly find as a fact that it is not true that a \r\n \r\n6 | P a g e  \r\nletter of 4th defendant that came after a loan had been disbursed became the assurance upon which the first loan was disbursed.  Plaintiff therefore failed to prove that 4th defendant should be held liable for the loan of Gh¢25.000 together with the interest on it.  \r\nWhat then of the second loan of Gh¢15.000?  \r\nPlaintiff claims that the loan of Gh¢15.000 could not have been disbursed without what 4th defendant told them that it was going to do. That is to pay the contract sum due the 1st defendant in the joint names of Plaintiff and 1st defendant. For Plaintiff’s representative confirmed this whiles under cross examination in the following exchanges:  \r\n“Q: Are you telling this court that there was then a contract of undertaking between the Plaintiff and the 4th defendant   \r\nA: Yes My Lord  \r\nQ: Did he give you any document covering this contract of undertaking between the Plaintiff and the 4th defendant, yes or no  \r\nA: Per Ex ‘A’ it is what we dwelt on to make our decision ...”  \r\nIt is therefore necessary to reproduce in full the contents of Ex ‘A’ as way of determining if it is capable of amounting to a legal undertaking which might have informed the decision of Plaintiff to grant the loan of Gh¢15.000 to the 1st defendant.  \r\n“Re: issuance of Cheque in a Joint Name Freeman GT and Forms Capital  \r\nWe wish to advise that Freeman GT Company is one of our contractors who has been awarded contract to renovate and make extension works ...  \r\nFreeman GT Company has requested that payment to him in respect of renovation of house N. C1 Community 1 should be made in the joint names \r\n \r\n7 | P a g e  \r\nof Freeman GT Co/Forms Capital.   We therefore undertake to issue the cheque in the joint names of Freeman GT/Forms Capital”.  \r\nFrom the clear reading of Ex ‘A’ quoted supra, the letter was written based on the promptings of 1st defendant. And it is even clearer when regard is had at Ex ‘1’ tendered by the 4th defendant which shows why Ex ‘A’ was written. 1st defendant requested 4th defendant to make payments to it in the joint names of Plaintiff and 1st defendant and further requested that the reply to Ex ‘1’ should be copied the Plaintiff as well. It is true that in Ex ‘A’ 4th Defendant went to even extent of using the word ‘undertake’  but does it necessarily mean then that the whole letter was in the nature of an undertaking in law.  \r\nAccording to the 8th edition of the Black’s Law Dictionary, to undertake mean, among others,  to give a formal promise; guarantee , To act as surety for another; to make oneself responsible for a person, fact, or the like whiles undertaking is defined as a promise or a pledge. Such a promise or a pledge should be one that is binding in the law of contract. Classic examples of an undertaking could be a unilateral contract where a person promise another to do an act if the offeree will do or refrain from doing an act. It is worthy of note that a unilateral contract such as an undertaking is one of the few exceptions to the general rule of contract that there must be a consideration. For indeed section 5 of the Contracts Act, Act 25 states as follows:  \r\n“(1) Any provision in a contract made after the commencement of this Act which purports to confer a benefit on a person who is not a party to the contract, whether as a designated person or as a member of a class of persons, may, subject to the provisions of this Part, be enforced or relied upon by that person as though he were a party to the contract”.   \r\nIt is the law then that consideration need not move from the promisee to validate the contract as section 10 of the Contracts Act, Act 25 states as follows:  \r\n“No promise shall be invalid as a contract by reason only that the \r\n \r\n8 | P a g e  \r\nconsideration therefor is supplied by someone other than the promisee”.  \r\nThe English case of DAULIA LTD v FOUR MILLBANK NOMINEES LTD [1978] CH 231 an undertaking in the form of a unilateral contract was explained by the court in the following terms:  \r\n“ whilst I think the true view of a unilateral contract must be in general be that the offeror is entitled to require full performance of the condition which has imposed and short of that he is not bound, that must be subject to one important qualification, which stems from the fact that there must be an implied obligation on the part of the offeror not to prevent the condition becoming satisfied, which obligation it seems to me must arise as soon as the offeror starts to perform”.  \r\nSee also the case of LUXOR (EAST – BOURNE) LTD v COOPER [1941] AC 108.  \r\nIt is therefore the position of the law that an undertaking as far as the law is concerned is a binding contract on the party that provided the undertaking.   \r\nBut the question in this suit is can Ex ‘A’ or does Ex ‘A’ amount to an undertaking to have the legal effect of binding 4th defendant? Plaintiff’s representative claimed under cross examination that:  \r\nQ: What security did you take for this loan of Gh¢15.000  \r\nA: ... Joint and several guarantees of the two directors of 1st defendant company and assignment of VRA receivables”  ...  \r\nQ: Did you inform the 4th defendant company of its obligations under the loan of Gh¢15.000   A: No My Lord  \r\nQ: Why  \r\nA: Because we already had undertaking from them.  \r\nThis latter answer cannot be correct as there had been no word or any \r\n \r\n9 | P a g e  \r\ncommunication between the Plaintiff and the 4th defendant and the only time Ex ‘A’ was written was when 1st defendant was sourcing for the loan of Gh¢15.000.  Plaintiff has indicated that beyond Ex ‘A’ the 4th defendant assured it by word of mouth that it would pay the contract sum in the joint names of Plaintiff and the 1st defendant in the following exchanges during cross examination:  \r\n“Q: Are you telling the court that when you had your alleged meetings with the Town Manager, the Area Finance Manager you did not send any writing to that effect to the 4th defendant  \r\nA: No because they assured me that payment will come  \r\nQ: Who assured you   A: Both the Town Manager and the Area Finance manager  \r\nQ: In writing or by word of mouth  \r\nA: By word of mouth.  \r\nThe 4th defendant denied the taking place of any meeting where verbal assurances were given by the 4th defendant to be bound in making payments in joint names and as it is trite that when an averment of a party is denied the party whose allegation has been denied is obliged to prove his claim by some corroborative evidence. Ollenu JSC in MAJOLAGBE v LARBI [1959] GLR 190 relying on a dictum in KHOURY v RICHTER that:   “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, and his averment is denied, he does not prove it by merely going into the witness-box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances, from which the Court can be satisfied that what he avers is true”  \r\nWith the attempt to rely on a verbal assurance by the Plaintiff having been denied by the 4th defendant, what comes close to the provision of any \r\n \r\n10 | P a g e  \r\ncorroborative evidence would be Ex ‘A’.  However, a clearer picture of what Ex ‘A’ amounts to will be made out when the court proceeds to examine the case of the 4th defendant. 4th defendant in its attempt to avoid a ruling against it in resisting the claim testified by calling its representative Henry Tetteh Ahorlu and Dw1 Edwin Aryittey, the two being the Area Finance Manager and Town Manager respectively of the 4th defendant. According to Tetteh Ahorlu Ex ‘A’ is nothing but payment instructions from one of their contractors they had awarded a contract to and the 4th defendant had not been privy to any contract between Plaintiff and 1st defendant. 4th defendant tendered Exhibits 1 to 8 and includes the payment instructions of 1st defendant which is Ex ‘1’and Ex ‘2’ which is the same as Ex ‘A’, a further payment instructions that changed the payment of the contract sum in the joint names of 1st defendant and Plaintiff to 1st defendant and Zenith Bank, Ex ‘4’ a letter from 4th defendant to Zenith Bank and Ex ‘8’ the facility letter of the loan of Gh¢15.000 to 1st defendant.  \r\nI had throughout the trial been convinced that this was a case that was on all fours with the decision of the Supreme Court in the case of NDK FINANCIAL SERVICES LTD v AHAMAN & OTHERS Unreported Suit No. J4/23/2013 dated 28th November, 2014. But I think there are a number of distinguishable differences between the NDK case and the present one. First it must be noted that in the NDK case there had been an MOU between Ahaman and the Ministry of Energy to make payments due Ahaman in the joint names of Ahaman and NDK. I do not find on the evidence before me that there had been a specific agreement between 1st defendant and 4th defendant to that effect. As it was a mere payment instructions communicated from 1st defendant to 4th defendant, such instructions could be changed at any time.  \r\nSecond, in the NDK case there had been previous cheques that had been paid by the Ministry of Energy in the joint names of NDK and Ahaman and the Ministry had become fully aware of the binding obligations that had been imposed on them to pay monies in the joint names of NDK and Ahaman. With the case before me there had been no such previous payments made by the 4th defendant.  \r\nThird, whiles in the NDK case it was found as a fact that the Ministry of Energy was fully aware that the loan advanced to Ahaman was contingent upon the Ministry making payments in joint names, that is not what I find here. There seems to have been a communication of the mode by which 1st \r\n \r\n11 | P a g e  \r\ndefendant wanted to be paid and 1st defendant was at liberty to change same. It is true that Plaintiff was notified of the instructions of 1st defendant but that was done simply because 1st defendant requested that to be done as it was done with Ex ‘4’ as well.  \r\nAgain whiles in NDK case the words and the nature of the communication from the Energy Ministry to NDK was clear and unequivocal to the extent of even stating that the mode of payment would not be revoked or waived or varied without prior written notice to NDK, that is not the situation on the facts of this case. As Exhibit A seems only to convey to Plaintiff what 1st defendant had instructed it to do  \r\nOne could see that Ex ‘A’ and its language is not different from Ex ‘4’ which 4th defendant wrote to Zenith Bank that it would pay the contract sum in the joint names of 1st defendant and the Zenith. And Ex ‘4’ was written based on a similar letter to Ex ‘1’ from 1st defendant. I find that there is no evidence on record that show that Plaintiff communicated to the 4th defendant the liability it assumes and the need to undertake or promise to pay the contract sum in the joint names of Plaintiff and 1st defendant.    Exhibit ‘A’ or Ex ‘1’ does not come within the scope of that kind of unilateral undertaking contemplated under section 10 of the Contracts Act to make the 4th defendant bound.  If Plaintiff had in mind to bind the 4th defendant to the payment of the receivables then it had been tardy as Ex ‘A’ alone seems not to be enough to create the nature of legal relations that a contract of such nature requires.  \r\nPlaintiff fails in his quest to recover both the first loan of Gh¢25.000 and the second loan of Gh¢15.000 together with their respective interest from the 4th defendant. The action of the Plaintiff against the 4th defendant is dismissed in its entirety for the reasons and findings made supra.           \r\n \r\n12 | P a g e  \r\nI will award cost of Gh¢7.000.00 in favour of the 4th defendant against the Plaintiff.   \r\n   \r\n             (sgd.) Eric Kyei Baffour,  Esq  Justice of the High Court      \r\nRepresentations:   \r\nPlaintiff represented by James Annan – Present  4th Defendant Representative – absent  Opoku Adjei, Esq with Nana Aisha Salifu, (Ms.) and Rosemary Obeng Kwaah, (Ms.)  for Plaintiff  Seth Asante, Esq for Defendant  ', 'links/cases/FORMS CAPITAL.pdf', 'Yes', '', '2016', 'high', '', 'ERIC K. BAFFOUR, J', 'Civil', '', 'RPC/249/2014', '', '', 'High Court, Accra', '2016-03-21', ''),
(601, 'C.F.C CONSTRUCTION &  FURNITURE LIMITED \r\n VRS \r\n1) CARL JOSIAH REINDORF 2) PHILIP REINDORF', 'J   U   D   G   M   E   N   T \r\nPlaintiff on 19th June, 2012 issued a writ of summons with a statement of claim seeking the following: \r\na) Declaration that the judgment of the High Court dated 22nd July 1997 was obtained and granted by fraud and illegality.  b) An order to set aside the judgment. c) Declaration that defendant herein has no capacity to grant out any of the C.F.C estate land at Mile 7½ on the Accra-Nsawam road. d) Declaration that all grants by defendant herein of C.F.C lands based on the 1997 judgment be null and void. e) Order for account of all lands granted by defendant of the C.F.C estate lands for regularization of titles for such grantees. \r\nPage 2 of 8  \r\nf) Declaration that Onamrokor-Adain family is the rightful grantor of the plaintiff. g) An order to Deeds Registry to cancel registration of the 1997 judgment in the name of defendant.  h) General damages. i) Costs. \r\nThe defendant filed a conditional appearance and later filed a motion to dismiss the writ of summons. This application was however not granted and the parties were eventually ordered to file documents they intended to be relied on in the suit as well as their pre-trial checklist and witness statements. The issues arising upon application for directions being taken are: \r\na) Whether or not the land in dispute at Mile 7½ on Accra-Nsawam road forms part of Dome lands legally acknowledged to be Onamrokor-Adain family land? b) Whether or not the lands at Mile 7½ was by lease agreement of 22nd October 1955 leased to plaintiff-company for 99 years and same was registered as 2421/1955 for him to build dwelling houses on same and lease out? c) Whether or not by indenture issued on the said lease executed by the Head of Onamrokor-Adain family, Dr. C. E. Reindorf, with the concurrence of the principal members of the family established that the said grant was done on behalf of the Onamrokor-Adain family and not as the personal property of Dr. C. E. Reindorf?  d) Whether or not it was fraudulent and illegal on the part of Dr. C. E. Reindorf to have willed or devised the said leased lands to his daughter and nephew as it came out after his death? \r\nPage 3 of 8  \r\ne) Whether or not the judgment of the High Court in Suit No. 1450/1992 given on 22nd September 1997 describing such a devise by Dr. C. E. Reindorf in his will as right is rather fraudulent and illegal and therefore a nullity and must be declared as such?  f) Whether or not plaintiffs are the same as those in the Suit the judgment in issue here was given against here? g) Whether or not plaintiff has locus in this matter?  h) Whether or not plaintiff is entitled to his claim?  \r\nThe representative of the plaintiff-company, Florence Leela Dyson, who is currently the Managing Director of C.F.C Construction Limited having succeeded her brother, Francis Dyson, prayed the court for an order of the court that judgment of the High Court in Suit No. 1450/1992 delivered on 22nd September, 1997 be declared null and void on grounds that the said judgment, the devise of the CFC land granted by Dr. C. E. Reindorf, was as the Head of Onamrokor-Adain family. \r\nIn 1955, the late Dr. Charles Elias Reindorf executed a lease between the plaintiffcompany and himself as Head of the Onamrokor-Adain for a period of 99 years. Dr. C. E. Reindorf died in 1967 and willed his properties to Emelia Reindorf and Hackenburg Reindorf and this the plaintiff -company is praying for the judgment of 1997 on Suit No. 1450/1992, which is based on the devise of Dr. C. E. Reindorf to his successors to be set aside. According to plaintiff, the grant of the land was made by Dr. C. E. Reindorf in his capacity as Head of family of the Onamrokor- Adain family and not in his personal capacity. \r\nThe case of the defendant is that his grandfather, Dr. C. E. Reindorf, was gifted the land in question in 1952 under a grant to “himself and the female line of the family” that is his maternal line of the family. This grant, plaintiff says prescribed a joint \r\nPage 4 of 8  \r\ntenancy of ownership by him and the maternal line of the family. His death therefore made the family the sole owner. \r\nThis was denied by defendant who said the devise to Emelia and Hackenburg was legitimate devises, because the land had been gifted to Dr C. E. Reindorf on recognition of his father Rev. C. C. Reindorf for his outstanding leadership as one time head of family.  \r\nAccording to defendant, Dr. C. E. Reindorf appointed the Registrar-General as the Administrator / Executor of his estate and they in turn vested the property in the devisees, Emelia and Hackenburg Reindorf. Plaintiff-Company has refused to pay ground rent for over 24 years hence the action which resulted in the judgment in Suit No. 1450/1992 which the plaintiff is seeking to set aside for fraud and illegality. \r\nUpon considering the evidence adduced, I find as a fact that the land in dispute forms part of the Dome lands at Mile 7½ on the Accra-Nsawam Road acknowledged to be legally the property of the Onamrokor-Adain family. \r\nI also find as a fact that the said land at Mile 7½ was by the lease agreement of 22nd October 1955 leased to the plaintiff-company for 99 years and same was registered as 2421/1955 and it was meant for the plaintiff to build dwelling houses on same and to lease out. This was unchallenged. \r\nOn the issue of the capacity in which the grantor, Dr. C. E. Reindorf, granted the lease, the court has had to look at the lease agreement in its entirety to reach its decision. The agreement dated the 20th of May, 1952 and registered at the Deeds Registry as No. 774/1952. This grant was made between Nii Jacob O. Quayefio, Nii Tetteh Cobblah, Ahere Nukpa Anoi Lamptey, Emmanuel B. Quarcoo and Charles T. Quarcoo, all appointed representatives and elders of the Onamrokor- Adain \r\nPage 5 of 8  \r\nfamily of Accra, on the one part, and Dr Charles Elias Reindorf, “acting in his capacity as Head of Onamrokor-Adain female line family of Accra aforesaid”. \r\nIn my humble opinion, this grant of land to Dr C. E. Reindorf and the female line of the Onamrokor Adain family created a joint ownership between Dr. Reindorf and the female line. It did not confer on him absolute ownership. The question is whether in a joint tenancy as this was, Dr. Reindorf had the right to make the said grant of the land, a subject matter in his will and to devise the said lands as if they were his personal property. Dr. Reindorf may have been under the impression that the 1952 grant made him an owner of the lands absolutely. Given the ordinary meaning of the 1952 document, I beg to differ. Before January 1974 when the Conveyancing Decree was enacted, where property was given to two or more people without express words to show otherwise, no distinct or separate share was created, but rather a joint tenancy was created. This joint tenancy had the characteristics of the right of survivorship and the unity of possession, unity of interest, unity of title and unity of time. This means that interest in such a joint tenancy cannot pass under a will or even intestacy. From the foregoing, it is clear that Dr. Reindorf did not have a right under law to devise the lands under his will to the beneficiaries therein. Having made such a finding it is important to look at the agreement between Dr. C. E. Reindorf and C.F.C in 1955. \r\nThe 1955 grant was between the plaintiff, C.F.C on one part, and Dr. C. E. Reindorf, who executed the document in his capacity as the then Head of family of the Onamrokor-Adain family with consent and concurrence of the principal members of the family. This goes a long way to signify that that particular grant was entered into by Dr. C. E. Reindorf in his capacity as Head of family and not his personal capacity as owner of same. The document is as plain as can be and does not need any special \r\nPage 6 of 8  \r\ninterpretation to determine the meaning of the 1955 grant between Dr. C. E. Reindorf and the plaintiff.  \r\nThe plaintiff has sought to establish that the judgment of my senior brother Gyamera Tawiah J. was acquired by fraud and illegality. I have critically looked at the evidence adduced so far and I am of the opinion that the judgment of 1997, which was given by the Court, was under the impression that indeed the ancestor of the plaintiff, then Dr. C. E. Reindorf, was the bona fide owner of the Dome lands that he had devised under his will. This may have resulted because the defendant then who is the plaintiff herein did not appear to defend the matter. The Court did not seem to have been apprised of the existence of a public notice dated the 15th of  November, 2000, issued by the Administrator-General, notifying the general public of the revocation of vesting assent given in favor of Emelia Patience Reindorf and the administrators of the estate of Late Daniel Hackenburg Reindorf and others which had been done on 30th December, 1993. \r\nIt is also worthy of note that the law of survivorship which was in operation in Ghana as at 1967 when Dr. C. E. Reindorf died, made the property in question the property of the female line of the Onamrokor-Adain family. Dr. C. E. Reindorf could therefore not devise it to anyone as if it was his personal property. It is therefore an illegality to do so. The devise was null and void that the plaintiffs in Emelia Reindorf v. C. F. C Co. Limited based their claim and upon which the court also based its judgment. \r\nIt is also worthy of note that the plaintiff in the case of Emelia Reindorf (substituted by Carl Reindorf) v. C.F.C  Co. Limited, were aware of the Administrator-General''s withdrawal of vesting assent long before judgment was passed in that case and it was the plaintiff''s duty to disclose any such information to the Court. Fraud is a tort arising from a known misrepresentation made to induce another to his or her \r\nPage 7 of 8  \r\ndetriment. According to Lord Denning in the case of Lazarus Estates v. Beasley [1959] 1 All ER at 341, "No court in the land will allow a person to keep an advantage which he has obtained by fraud". \r\nThe plaintiffs herein have alleged fraud in this matter and have gone to lengths to put across what fraud they are referring to. The Appeal Court stated that “a charge of fraud is to be taken to be properly made against a party who knowingly or recklessly, whether by conduct or words used unfair, wrongful or unlawful means to obtain a material advantage to the detriment of another party". \r\nAgain, in the case of Republic v. High Court, Accra, Ex parte Aryeetey [20032004] SCGLR 398, it is stated that "Fraud is a serious sin against the administration of justice. It vitiates everything. Thus a judgment obtained through fraud can best be set aside and when a judgment is impeached for fraud, its legitimacy is put in issue and cannot operate as an estoppel per rem judicatem provided the alleged fraud is properly and adequately raised ...” \r\nThis Court from the foregoing holds that the judgment of the Court in the matter of Emelia Reindorf v. C.F.C Co. Limited with Suit No. 1450/1992 was a judgment illegally obtained by fraud.  \r\nThe said judgment is therefore set aside. \r\nIt is again declared that the defendant herein has no capacity to grant out C.F.C estate lands at Mile 7½ on the Accra-Nsawam road and that all such grants made on the basis of the 1997 judgment are null and void. It is hereby declared that the Onamrokor-Adain Family is the rightful grantor of the plaintiff. The defendant is ordered to account to plaintiff for all lands granted, for regularization of title for such \r\nPage 8 of 8  \r\ngrantees. The Deeds Registry is hereby ordered to cancel the registration of the 1997 judgment in the name of defendant.  \r\nGeneral damages of GH¢10,000.00 is ordered to be paid to plaintiff and cost of GH¢3,000.00 is awarded to plaintiff.  \r\n                              \r\nSGD JUSTICE DORIS BEMPONG (JUSTICE OF THE HIGH COURT)  ', 'links/cases/FURNITURE CONSTRUCTION.pdf', 'Yes', '', '2016', 'high', '', 'DORIS BEMPONG (MRS), J', 'Civil', '', 'BMSC 816/2012', '', '', 'High Court, Accra', '2016-06-23', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(602, 'GALTON NENE KANOR NARTEY  \r\nVRS  \r\n1. CLASSFAM (GH) LTD, 2. NANA OBENG AKROFI', '\r\nJUDGMENT  \r\nFACTS  \r\nThe Plaintiff was employed, first with Classfam Pharmacy and then subsequently, with Classic Herbal Centre, both operated by the 2nd Defendant as Managing Director at all material times.  In both establishments, Plaintiff was designated as a Shop Manager on full time basis.  His employment with Classfam Pharmacy was regulated by a letter of employment dated 30th March, 2006 while his employment with Classic Herbal Centre was regulated by a letter dated 2nd July 2007.  At a later date, the 1st Defendant, Classfam (GH) Ltd., took over the two business operations of the 2nd Defendant.  On 1st January, 2010, the Plaintiff’s salaried position was converted to commission on sales by the 1st Defendant.  The Plaintiff, not satisfied with this change in his position has brought the present action seeking the following reliefs against the Defendants, jointly and severally or in the alternative as per his writ of summons and statement of claim:  \r\n“1. A declaration that the unilateral alteration of Plaintiff’s contract of employment by the Defendant by a letter dated January, 1, 2010 amounts to unfair termination of Plaintiff’s employment with the Defendant. 2. Damages for unfair termination. \r\n2 \r\n3. An order for the payment to the Social Security and National Insurance Trust of Plaintiff’s monthly social security contributions for the months that Defendant failed to pay same, as specified in the attached statement of claim. 4. Compensation for denial of Plaintiff’s annual leave entitlements for the period that Plaintiff was in the employment of the Defendant.” \r\nSubsequently, pursuant to the Order of his Lordship Justice Esuman Adu dated 14th November, 2011, the Plaintiff amended his writ of summons and statement of claim to read as follows: “1. A declaration that the unilateral alteration of Plaintiff’s contract of employment by the Defendant by a letter dated January, 1, 2010 amounts to wrongful dismissal or, in the alternative, unfair termination of Plaintiff’s employment with the Defendant. 2. Damages for wrongful dismissal or, in the alternative, unfair termination. 3. An order for the payment to the Social Security and National Insurance Trust of Plaintiff’s monthly social security contributions for the months that Defendant failed to pay same, as specified in the attached statement of claim. 4. Compensation for denial of Plaintiff’s annual leave entitlements for the period that Plaintiff was in the employment of the Defendant.” \r\nFrom the onset, I would note that this case was transferred to the Commercial Court by Her Ladyship, the Chief Justice, from the Industrial and Labour Court on 17th November, 2015 for continuation and adjudication.  \r\nI have reviewed the record of proceedings and the evidence adduced in this case extensively.  Plaintiff’s case consisted of his own testimony and the documentary evidence he submitted in support of his claim, marked in the record as Exhibits ’A’ through ‘D’.  On the other hand, the Defendants’ case was limited to the cross-examination of the Plaintiff, the testimony of its witness and their supporting documents marked into evidence as Exhibits ‘1’ through ‘7’.    \r\nPlaintiff’s Case  \r\nThe case of the Plaintiff is that he was employed by the 2nd Defendant, then doing business in the name and style of Classfam Pharmacy, as a shop manager on full time basis.  His appointment afforded him monthly salary with overtime allowances and bonuses.  The appointment letter was dated 30th March, 2006 but the appointment was to take retroactive effect from 2nd February, 2005.  Further, the overtime allowances and bonus were also to take effect from April 2006.  It is the Plaintiff’s claim that he was later assigned to work with Classic Herbal Centre, another business name under which the 2nd Defendant was trading.  \r\nAccording to Plaintiff, he was appointed a shop manager at Classic Herbal Centre by letter dated 2nd July, 2007.  His position as a shop manager with Classfam Pharmacy continued with Classic \r\n3 \r\nHerbal Centre.  In the course of time the 1st Defendant took over the business of the 2nd Defendant and assumed responsibility as Plaintiff’s employer jointly with the 2nd Defendant.    \r\nIt is the complaint of the Plaintiff that by a letter dated 1st January, 2010, the terms of his employment were changed and his position of shop manager was altered to that of a marketing representative; and his remuneration changed from salary to commission on sales.  These changes, the Plaintiff, alleges were unilateral, without notice, unfair and amounted to wrongful dismissal.  \r\nPlaintiff further alleges that he was not granted leave for the period he worked with the Defendants and that the Defendants failed to pay all his social security contributions to the Social Security and National Insurance Trust (hereinafter, “SSNIT”).  \r\nDefendants’ Case  \r\nThe Defendants on their part contend, in the main, that the alleged change in the Plaintiff’s terms of employment was the result of a management decision taken during discussions at the general meeting by management staff which included the Plaintiff by virtue of his position as the Shop Manager.  The Defendants, therefore contend that the Plaintiff cannot now turn around to allege that the change in the terms of his employment was a unilateral act of the Defendants.  The Defendants further contend that if the Plaintiff was dissatisfied with that decision, he should have stated his dissatisfaction in a response to the memo dated 1st January, 2010, that Defendants sent to him reiterating the decision that was taken at the management meeting rather than vacating his post.  In the circumstances, the Defendants had the right to summarily terminate his employment.  \r\nThe 2nd Defendant further alleges that the Plaintiff, as shop manager, by his negligence caused financial loss to the 1st Defendant, which loss was disclosed during stock-taking.  The 1st Defendant therefore counterclaims as follows:  \r\na. A declaration that by his employment duties with 1st Defendant, a duty of care relationship existed between the Plaintiff and 1st Defendant concerning the company’s assets entrusted to the Plaintiff. b. A further declaration that, by that relationship in relief (s) supra, the Plaintiff owed a duty of care to ensure that the 1st Defendant does not suffer any loss in the value of stock entrusted into his care. c. A declaration that the 1st Defendant has suffered loss and damage as a result of the negligence of the Plaintiff in the loss of the value of stock worth GH¢ 12,349.27. d. An order upon Plaintiff to pay to 1st Defendant the said GH¢ 12,349.27. e. An order upon Plaintiff to pay to 1st Defendant the said GH¢ 12,349.27 with interest at commercial rate to date of final payment. f. Costs. \r\n4 \r\nISSUES \r\nAt the close of pleadings, the following issues were set down by the court for trial:  \r\n1. Whether the Defendants unilaterally changed the terms of Plaintiff’s employment and, if they did, whether that change did not amount to wrongful dismissal of Plaintiff from his employment. 2. Whether there was any financial loss incurred by the Defendants and whether Plaintiff was liable for that loss. 3. Whether Plaintiff was denied leave and if so, for how long. 4. Whether Defendants failed to pay Plaintiff’s social security contributions due SSNIT for a total of fourteen (14) months. \r\nAdditional issues that were raised in the course of the trial and in Defendants’ address are the following:  \r\n1. Whether or not the High Court has jurisdiction to entertain this case. 2. Whether the 2nd Defendant is a proper party to be joined to the suit. 3. Whether the Plaintiff abandoned his office by absenting himself from work for which reason he was subsequently dismissed. \r\nI have given my thoughtful consideration to the rival contentions put forward by the parties to the suit as well as the written submissions filed by both Counsel on their behalf.  I have also considered the relevant provisions of the High Court (Civil Procedure) Rules, 2004 (C.I 47), the Labour Act, 2003, Act 651 (hereinafter, “Labour Act”), the National Pensions Act, 2008, (Act 766) and the case law on this matter.  \r\nJurisdiction Issue  \r\nAfter this case has travelled through the court system for about five years and following a lengthy trial, the learned Counsel for the Defendants has realised, at the last minute, that he had participated in a trial over which the High Court has no jurisdiction.  This claim by Counsel for Defendants was raised for the first time in the written address he filed on behalf of his clients.  It is the claim of the Defendants that the High Court has no jurisdiction to entertain the case filed by the Plaintiff for an unfair termination of his employment by his employer.  According to the Defendants,   \r\n“the Plaintiff’s writ filed before the High Court, Accra was incompetent as it was in clear breach of the statutory provision in Section 64 of Act 651.  It was a complete nullity and the High Court, Accra had no jurisdiction to entertain it… It also quite obviously has no jurisdiction to make an Order amending the writ and its indorsement and therefore the Order made on 14th November, 2011 pursuant to which the Plaintiff filed an amended writ and statement of claim … is void … \r\n5 \r\n[t]herefore, … the Plaintiff had no claim before the court to be adjudicated upon.  The only claim before the court was that of the 1st Defendant which is its Counterclaim …”.   The issue of jurisdiction, as has been held in many decided cases, is fundamental and it touches squarely on the competence of this court to entertain or adjudicate on the issues presented before it.  See the case of ESSAH v. SOFO [1972] 2 GLR 301-304, where Edusei J, applied TIMITIMI v. AMABEBE (1953) 14 W.A.C.A. 374 at p. 377 and held that where there is no jurisdiction to hear a matter, the judgment or proceedings are void.  I am, therefore, required to ensure that the writ placed before me was filed in observance of due process of law without a disabling feature which will rob this Court of its Jurisdiction to hear this matter.    \r\nIt may be prudent to reproduce here the relevant portions of Section 64 of the Labour Act on which the Defendants rely to make their claim.  It states as follows:  \r\n “64. Remedies for unfair termination  (1) A worker who claims that the employment of the worker has been unfairly terminated by the worker’s employer may present a complaint to the Commission. (2) If on investigation of the complaint the Commission finds that the termination of the employment is unfair, it may (a) order the employer to re-instate the worker from the date of the termination of employment; (b) order the employer to re-employ the worker, in the work for which the worker was employed before the termination or in any other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination; or (c) order the employer to pay compensation to the worker. \r\nThe Defendants’ case, as I understand it is that on the strength of Section 64 of the Labour Act, supra, because the Plaintiff’s claim as endorsed on his original writ of summons was for reliefs resulting from unfair termination, he was enjoined by that section to file his claim with the Labour Commission and not with the Courts.  In further support of this claim, the Defendants rely on the Supreme Court case of BANI v. MAERSK GHANA LIMITED [2011] 2 SCGLR, 800 where their Lordships held, inter alia, that   \r\n“Sections 62 and 63 of the Labour Act 2003 (Act 651) set out clearly the law on fair and unfair termination of employment….. Section 64 of the Act provides that a worker who claims that his employment has been unfairly terminated may present a complaint to the Labour Commission established under the Act.  If the Commission finds  that the termination of the worker is unfair, it may give him or her one of three remedies specified in the Act:  an order to the employer to re\r\n6 \r\ninstate the worker from the date of termination of employment; an order to the employer to re-employ the worker in the work for which the worker was employed before the termination or in any other reasonably suitable work on the same terms and conditions enjoyed by the worker before the termination; or order the employer to pay compensation to the worker.  These statutory remedies are made available to the Commission but not, at least expressly, to the courts.”  \r\nI am of the view that the learned Counsel misinformed himself on the interpretation he chose to place on the law and also on the evidence before the Court.  The word “may” used in Section 64 and reiterated by their Lordships in the quotation above, suggests to me that the aggrieved worker is empowered by the Labour Act with the liberty to file his complaint with the Labour Commission or to choose some other route.  This is in keeping with the definition given to the expression “may” in an enactment by Section 42 of the Interpretation Act (2009) Act 792, that "may" shall be construed as permissive and empowering.  Furthermore, the BANI v. MAERSK GHANA LIMITED case, cited above, dealt in part with the situation where the aggrieved employee was requesting reinstatement as against the Plaintiff herein’s claim for damages.  This view is supported by the fact that as a precursor to dealing with the issue of fair and unfair termination of employment under Sections 62 and 63 of the Labour Act, their Lordships stated that:  \r\n“In Ghana, the statutory intervention to give employees the right to reinstatement has not been to set aside the equitable principle refusing specific performance to contracts involving personal service.  Rather, it is a remedy that is made available to the Labour Commission established under the Labour Act 2003.”  \r\nIt is only a court of law that has the power to assess and order damages.  The Act establishing the Labour Commission did not vest such powers in the Labour Commission, in my opinion.    \r\nBe that as it may, the evidence before this Court shows that the Plaintiff filed a complaint with the Labour Commission before proceeding to file his writ with the Court.  On 23rd March, 2015, the Plaintiff testified as follows:  \r\n“In 2010, 1st January, I received a letter from Classfam Ghana Ltd. signed by the 2nd Defendant that my appointment has been changed from a monthly salary earning to a commissioned worker. … I disagreed with the change.  I did not continue with the employment.  I took the matter to the Labour Commission.  The case was called several times, he appeared only once.  I decided to bring the case to the Court…”   \r\nThis testimony was not controverted on cross-examination nor did the Defendants provide the Court with any evidence to the contrary.  The position of the law on not cross-examining a witness \r\n7 \r\nafter he has given his evidence in chief, is well settled.  In the case of TAKORADI FLOUR MILLS v. SAMIR FARIS [2005-06] SCGLR 882, Ansah JSC referred to the case of TUTU v. GOGO, [Civil Appeal No. 25/67 dated 28th April, 1969, unreported] digested in 1969 CC, 76, where Ollenu JA stated thus: \r\n“In law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in the evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court.” \r\nThe 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 the cases of BANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176-182, where the court applied the English case of HUYTON-WITHROBY U.D.C. v. HUNTER [1955] 2 All E.R. 398, and the Supreme Court of Ghana case of ABABIO v. AKWASI III [1994-95] Ghana Bar Report, Part II, 74.  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 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”.     \r\nFrom the foregoing, it is clear that the onus is on the Defendants to prove their assertion that the Plaintiff did not file a complaint with the Labour Commission first before proceeding to Court, once the Plaintiff had led testimony to that effect.  The Defendants by failing to provide such evidence or testimony, left the Plaintiff’s testimony undisputed.  They failed to establish the requisite degree of belief in my mind to show that it was more probable than not that the Plaintiff did not file the complaint with the Commission.  I am therefore convinced that the Plaintiff did file the complaint with the Labour Commission and it was when it became evident to him that the Defendants did not wish to participate in those proceedings that he filed the writ with the court.  \r\nTaking the arguments of Counsel for the Defendants in all aspects, therefore, there was no disabling reason that renders void the 14th November, 2011 Order of my brother, Justice Esuman Adu granting the Plaintiff leave to amend his writ of summons and statement of claim or would prevent this Court from having jurisdiction to hear this case, for that matter.    \r\n8 \r\nJoinder Issue  \r\nThe next issue I would like to discuss is the issue as to whether or not the 2nd Defendant is a proper party to be joined to the suit.  \r\nThe 2nd Defendant testified that he is the Managing Director of the 1st Defendant Company.  Indeed, all the correspondence tendered in evidence by both parties issued by 1st Defendant were signed by the 2nd Defendant in his capacity as Managing Director of the 1st Defendant.  See Exhibits “A”, “B” “C”, “3”, “4”, “5”, and “7”.  As Managing Director of the 1st Defendant, there is no denying the fact that 2nd Defendant was in charge of directing and administering the business of the 1st Defendant.  He was therefore at all material times acting as an officer of the 1st Defendant in the discharge of his duties.  So long as in the discharge of his duties he did not act ultra vires his mandate as managing director but carried on in the usual way the business of the 1st Defendant, all his acts are treated by law as being acts of the 1st Defendant itself.  Accordingly, if any of these acts are questioned in a court of law, it is the 1st Defendant that will be held to be liable for those acts to the same extent as if it were a natural person.  See Section 139 of the Companies Act (1963) Act 179.    \r\nA limited liability company is said to have a corporate personality different from its members and directors.  In SALOMON v. SALOMON & CO LTD [1896] UKHL 1, a landmark United Kingdom company law case, the effect of the House of Lords'' unanimous ruling was to uphold firmly the doctrine of corporate personality, as set out in the Companies Act 1862 of the United Kingdom, so that creditors of an insolvent company could not sue the company''s shareholders to pay up outstanding debts.  This principle is reiterated in the local case of OWUSU v. R. N. THORNE LTD. AND ANOTHER [1966] GLR 90-92, where Justice Boison had this to say: \r\n“The theory of legal personality of corporations has its own practical problems but it is clear that a limited company or corporation has legal existence apart from the directors and members, and it is in a few recognised exceptions that the law lifts the "corporate veil," as it has been put, and looks to the directors and members personally.”   \r\nIt is relevant here to mention the Supreme Court case of MORKOR v KUMA (No. 1) [1999-2000] I GLR 721 – 740.  That case involved a sale transaction between the respondent and the first Defendant, a limited liability company.  The appellant had been sued jointly with the first Defendant for the only reason that she was the Chief Executive, majority shareholder and a director of the company.  On the issue of whether the appellant had been properly joined to the suit, the court held that  \r\n“… the first Defendant was a corporate being with a capacity separate, independent and distinct from those constituting it or employed by it ... and the appellant would be a proper party to the suit only if a specific personal liability \r\n9 \r\nwere established against her or the veil of incorporation could be lifted to make her acts synonymous with those of the first Defendant or vice versa.  But the veil of incorporation could be lifted only in circumstances where in the light of the evidence the dictates of justice, public policy or the Companies Code, 1963 (Act 179) so required. Although it was impossible to formulate an exhaustive list of those circumstances, on the authorities, they included situations where it could be shown that the company had been established to further fraudulent activities or to avoid contractual liability... [T]hus in the absence of other factors driving the case. such as fraud, improper business conduct, … deliberate attempts at evasion of legal obligations, or other devises or willful misdeeds on the part of the appellant, the majority of the Court of Appeal erred in lifting the veil of incorporation upon those allegations and finding the appellant personally liable for the first Defendant''s debts and a proper person to be sued with the first Defendant for the recovery of the debt owed the respondent by the first Defendant”.   \r\nIn the absence of any extenuating circumstances as mentioned in the MORKOR v KUMA (No. 1) case that would require the veil of incorporation to be lifted to make the acts of the 2nd Defendant herein synonymous with the acts of the 1st Defendant company, the 2nd Defendant is not a proper party to be joined to this suit.  The 2nd Defendant cannot therefore be held jointly liable with the 1st Defendant for the latter’s acts or inactions.  I therefore hold that the 2nd Defendant’s joinder to the suit is not proper.  \r\nUnilateral Change and Abandonment Issue  \r\nI shall resolve the following issues together in the light of the law and evidence, that is, the issues of: ? “whether the Defendants unilaterally changed the terms of Plaintiff’s employment and, if they did, whether that change amounted to wrongful dismissal of Plaintiff from his employment” and  ? “whether the Plaintiff abandoned his office by absenting himself from work for which reason he was subsequently dismissed”. \r\nThe evidence of the record shows that the Plaintiff was employed in Classfam (GH) Limited (operating as Classfam Pharmacy) as Shop Manager by letter dated 30th March 2006 signed by 2nd Defendant as Managing Director, his employment to take effect from 2nd February, 2005.  See Exhibit “A”. By a letter dated 7th February 2007, Exhibit “1”, the Plaintiff purported to resign from Classfam (GH) Limited, which resignation was rejected by the company by a letter dated 8th February 2007, Exhibit “5” and signed by the 2nd Defendant in his capacity as the Managing Director.  By a letter dated 25th June, 2007, the Plaintiff applied for employment to Classic Herbal Centre, Exhibit “2”. In Exhibit “B” (which was also tendered by Defendants and marked in evidence as Exhibit “3”), Plaintiff was given an appointment letter by Classic Herbal Centre, while \r\n10 \r\nby Exhibit “4”, Plaintiff was given an appointment letter by the 1st Defendant, Classfam (GH) Ltd.  Both Exhibits “3” and “4” bear the same date of 2nd July, 2007.  With the exception of the letterheads on which the letters were printed, the contents are the same and both were signed by the same person, the 2nd Defendant in his capacity as Managing Director of both businesses.  \r\nPlaintiff’s application for employment, dated 25th June, 2007, Exhibit “2”, was addressed to Classic Herbal Centre.  Further, during re-examination by his Counsel on 26th February, 2016, the Plaintiff intimated to the court that he was only seeing Exhibit “4” for the first time in Court as he had never been given that appointment letter.  This evidence was not controverted by the Defendants and is therefore deemed to have been admitted by the Defendants.  See the case of TAKORADI FLOUR MILLS v. SAMIR FARIS, supra.  \r\nThe foregoing notwithstanding, from the evidence before me, I am of the opinion that the two (2) entities (Classic Herbal Centre and Classfam (GH) Limited) were operated by the 2nd Defendant and both were being used interchangeably by the Plaintiff and the 2nd Defendant in their relationship.  There is no disagreement as to whether there was an employee-employer relationship in this case and although the exhibits are unclear as to what entity is the employer, the Defendants did not contend that the Plaintiff brought the action against the wrong entity.  It is therefore my opinion that the Plaintiff was employed by Classfam (GH) Limited, the 1st Defendant herein.    \r\nThe essential terms of Plaintiff’s employment as spelt out in his letters of employment dated 30th March 2005 and 2nd July 2007 may be summarised as follows:  \r\n(a) He was to be on probation for three (3) months during which time his employment was determinable by either party on giving the other party two weeks’ notice or payment in lieu of notice. (b) After probation, either party may determine the agreement at any time on giving the other party one month’s prior written notice.  (c) In the event of proven misconduct such as disobedience or misbehaviour or dishonesty on the part of the Plaintiff, he would be summarily dismissed or his services would be terminated forthwith and the company was at liberty to use its discretion to determine payment of any entitlements due the Plaintiff. (d) He was to be paid a salary in addition to bonus and annual increments based on management efficiency appraisal exercise, less normal monthly deductions such as social security, income tax. \r\nExhibit “B” or “3” therefore was to regulate Plaintiff’s employment with the 1st Defendant and so constitutes Plaintiff’s contract of employment.  \r\nBy Exhibit “C”, a memo written on the letterhead of 1st Defendant by the 2nd Defendant to the Plaintiff, dated 1st January, 2010, a change in the salaried position of the Plaintiff from salary to a \r\n11 \r\ncommission on sales was confirmed to the Plaintiff.  Exhibit “C” stated in relevant terms as follows:  \r\n“Dear Galton, This is just to reiterate what we discussed earlier at the general meeting that as part of the ongoing reorganization … your remuneration has been converted from salary to commission on sales”. (Emphasis added)  \r\nFrom this memo, the decision to convert salaries to commission was taken at a general meeting, which meeting presumably some of the employees of the 1st Defendant must have attended.  This fact is corroborated by the testimony of the 2nd Defendant during cross-examination on 10th March, 2016 as follows:  \r\n“Q: You changed his status from a salaried worker to someone who now earns commission on sales, is that not correct? A: Yes.  There was a memo to that effect. Q: So you would agree with me that after that memo he was no longer in employment with the 1st Defendant. A: That is not correct.  The memo was a follow up on the general meeting, not only with him but with the whole staff.  If he was not happy with the change of position, as a management staff, he could have communicated as such to the 1st Defendant.  But he never did.  He decided to vacate his post afterwards.”  \r\nThe question that I have to answer here, then, is whether or not this change in the Plaintiff’s employment condition was a unilateral act of the 1st Defendant?   \r\nThe basic conceptual framework for the individual employment relationship is provided by contract and governed by the fundamental principles of offer and acceptance.  The employer offers to employ a person under certain terms and conditions and if the person finds those terms acceptable, he accepts the employment.  Now, in the course of the employment, can the employer without the consent of the employee change the terms and conditions of the employee’s contract of employment?    \r\nThe Labour Act is silent on the conditions under which an employee’s terms and conditions can be changed.  At common law, however, the general rule is that an employer is not permitted to unilaterally amend the terms of an employment contract with an employee as this would constitute a breach of contract. See the case of ROBERTSON v. BRITISH GAS CORPN [1983] ICR 351. If he does, the employee can choose to accept the breach of the contract (thus terminating the \r\n12 \r\nagreement), or accept the change, or remain in the employment but make it clear to the employer that he does not accept the change and claim for his original benefits.   The foregoing statement of the common law is reiterated at page 274 of the book LABOUR LAW by Simon Deakin and Gillian S. Morris, Butterworths, 1998 2d ed as follows:  \r\n“The employer’s refusal to abide by the agreed contract terms is, then, almost invariably a repudiatory breach of contract, which the employee has the option to accept, bringing the contract to an end; or he may alternatively affirm the contract by remaining in employment.  This, in itself, does not amount to agreement to vary the contract terms in the employer’s favour.  In particular, if the employee makes his disagreement clear, there can be no possibility of variation.  The employee can remain in employment and claim wages or salary at the rate provided for in the contract; a claim in debt for accrued wages or in damages for the employer’s breach of contract, can be made, and a declaration granted with respect to the future performance of the contract”.   See also the case of MORRIS v. CH BAILEY LTD [1969] 2 LLOYD’S REP 215.   It is the position at common law, from the above, then, that silence by the employee in response to the change, may disentitle the employee from later denying the legality of the variation.  See Grogan J ''Workplace law'' 6th ed (2001) at 36.  \r\nThe common law provides certain exceptions to the general rule stated earlier.  It further states that if the change does not amount to a material variation of the employee''s terms and conditions of employment the employer may implement it unilaterally.  However, if the change is a material modification of the employment contract, such as an increase in working hours, an employer is obliged to obtain the employees'' consent by persuading the employees to agree to such variation else he may be in breach of the employment contract.  See the South African case of A MAUCHE (PTY) LTD VA PRECISION TOOLS v NUMSA & 4 OTHERS, (1995) 161 ILl 655 (LAC) where Myburgh JA held that an employer''s instruction to its workers to operate two machines instead of one did not constitute a unilateral variation of the terms and conditions of employment.   \r\nThe LABOUR LAW, ibid, at 275 further restates another relevant exception to the general rule as follows:  \r\n“Moreover, if the employer can show that there is a good business reason for seeking to change the contract terms such as the need to enhance flexibility or efficiency of work organisation or even, simply, to make savings in response to a fall in external funding or in demand for its products, any dismissal flowing from the refusal of the employee to accept the new terms is likely to be potentially fair…”. \r\n13 \r\n  And this principle was applied in the case of CATAMARAN CRUISERS LTD v. WILLIAMS [1994] IRLR 176.  \r\nIt is evident from the record that the decision of management of the 1st Defendant to vary the terms and conditions of employment of its staff was a strategy to improve the economic fortunes of the company.  I view the variation in the salaried position of the Plaintiff from salary to a commission on sales to be a material change in the employment contract of the Plaintiff.  Before implementing this decision, however, management of the 1st Defendant did not act unilaterally; it engaged the affected staff, including the Plaintiff, in discussions evidenced by the general meeting it held to discuss this issue at which the Plaintiff was present and participated in same.  Plaintiff was therefore aware of the decision that was taken to change the terms of his employment contract as well as the other staff members.  If the Plaintiff was not in favour of the said variation, he had a duty to communicate this to his employer.  \r\nAssuming for a moment that Plaintiff was not given an opportunity to voice out any complaints he might have had at that general meeting regarding a change in his salaried position, he had ample opportunity to do so in writing when he was served with Exhibit “C”, the memo which reiterated the earlier decision taken by the management to change the terms of his employment contract.  It is evident from the record that the Plaintiff did not respond to this memo.  He simply walked away from his job and never came back.  By remaining silent and not responding to the decision of the management to vary the terms and conditions of his employment the Plaintiff is now disentitled from denying the legality of the variation.   \r\nI find that the change in the terms and conditions of Plaintiff’s employment which changed Plaintiff’s position from a salaried employee to one earning commission on sales, assuming it was even a unilateral act of the 1st Defendant, was not an act that was done without consulting the affected employees.  It was also an act that was necessitated by the need of the 1st Defendant to remain economically viable.  In effect, the variation in the Plaintiff’s employment conditions did not amount to wrongful dismissal of Plaintiff from his employment by the 1st Defendant.  \r\nIt is the case of the Defendants that following this decision of the management of the 1st Defendant, Plaintiff absented himself from work without lawful permission starting from the month of December, 2009 and he failed to also respond to Exhibit “C”.  This action or inaction of the Plaintiff, according to the Defendants, led the 1st Defendant to terminate Plaintiff’s employment summarily effective 31st January, 2010 by letter dated 1st December, 2010.  See Exhibit “7”, which states in relevant part as follows: “Galton Nartey Dear Sir, Letter of dismissal \r\n14 \r\nManagement has noted with deep regret [sic] your absence from duty without lawful permission since December, 2009.  Management views your conduct as vacating your post or duty.  It therefore notifies you in the company’s decision to dismiss you according[sic], effective 31st January, 2010”.  \r\nThe question that arises here is whether, the Plaintiff, from the evidence before me, in fact absented himself from work starting from the period of December 2009 till the 1st Defendant issued the letter of dismissal dated 1st December,  2010, a period of over a year.  \r\nPlaintiff testified on 23rd March, 2015, when he opened his case that on receiving Exhibit “C”, dated 1st January, 2010, he did not continue with the employment and rather took the matter to the Labour Commission.  Plaintiff by this testimony is therefore saying that he worked through the month of December, 2009 and his last day at work was 1st January, 2010 when he may have presumably been served with Exhibit “C”.  So, by his own admission, after 1st January, 2010 up till the effective date of his termination, 31st January 2010, Plaintiff did not report to work.   \r\nNow, what about the month of December, 2009, did the Plaintiff work at all in that month as he claims? \r\nBelow is a reproduction in part of the exchange between Counsel for the Defendants and the Plaintiff during cross-examination of the Plaintiff: \r\n“Q: Let’s go to 2009.  Take a look at Exhibit 7, dismissal letter … So you agree with me that because you absented yourself from work in December, 2009 you worked for 11 months that is from January to November. A: That is wrong.  I worked throughout the year. Q: Did you rebut the 1st Defendant’s assertion in Exhibit “7” that you absented yourself from work in December, 2009 by any reply to that letter? A: No, my Lord. Q: So, how do you want the Court to believe you that you worked in December, 2009 which is at variance with the 1st paragraph read in Exhibit “7”? A: I worked and I was paid at the end of December.” \r\nIf the Plaintiff worked in December 2009, as he asserts, the onus is on him to prove this assertion.  See supra, the general rule 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 as applied in the cases of BANK OF WEST AFRICA LTD. v. ACKUN and ABABIO v. AKWASI III.   \r\nI have reviewed the record before me and I find no evidence therein to support a finding that the Plaintiff worked and was paid in December, 2009.  Such evidence could have been in the form of his pay slip, a bank counter deposit slip or even the Plaintiff’s bank account statements covering \r\n15 \r\nthat period in question or the testimony of any of his former colleagues.  The only evidence I have is that of Plaintiff’s testimony which is not corroborated.  Being 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 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, I find that Plaintiff’s unsupported testimony that he worked in December 2009 is not believable.  See further the cases of KLUTSE v. NELSON [1965] GLR, 537, SC and ZABRAMA v. SEGBEDZI [1991] 2 GLR 221, CA. \r\nI therefore find that on the evidence, the Plaintiff willfully and deliberately absented himself from work commencing December 2009 without any lawful excuse. \r\nAccording to his Lordship, Dr. Seth Twum, JSC, in the case of KOBEA AND OTHERS v. TEMA OIL REFINERY; AKOMEA-BOATENG AND OTHERS v. TEMA OIL REFINERY (CONSOLIDATED), [2003-2004] 2 SCGLR 1033 at 1039, 1040,  \r\n“… an employer is legally entitled to terminate an employee’s contract of employment whenever he wishes and for whatever reasons, provided only that he gives due notice to the employee or pay him his wages in lieu of notice.  He does not even have to reveal his reason, much less to justify the termination.” \r\nDid the fact of absenting himself from work entitle the 1st Defendant to terminate the Plaintiff’s employment? \r\nThe parties are agreed that the relationship between the Plaintiff and the Defendants regarding the employment of the Plaintiff was governed by Exhibit “B”, Plaintiff’s letter of appointment which evidenced the employment agreement between the parties.  Exhibit “B” makes provision for situations where any of the parties may terminate the employment agreement. It provides that after probation, either party may determine the agreement at any time on giving the other party one month’s prior written notice  \r\nHaving held earlier that Plaintiff willfully and deliberately absented himself from work commencing December 2009 without any lawful excuse, Plaintiff is in breach of the provisions of his employment contract.  The onus is therefore on the Plaintiff to prove that there were extenuating circumstances which if considered would justify his absence from work.  \r\nFrom the record, I find that the only such circumstance alluded to by the Plaintiff is his testimony that he refused to report to work after he received Exhibit “C” and rather filed a complaint with the Labour Commission.  Is this a reasonable justification for absenting himself from work?  Plaintiff, however, did not provide the Court with any evidence setting out the nature of the claim he put before the Labour Commission.  This Court cannot therefore ascertain from the record \r\n16 \r\nwhether he even put in a claim for wrongful termination or unfair dismissal before the Labour Commission.  That notwithstanding, in my opinion, after filing the complaint, the Plaintiff should have continued with his employment while the Labour Commission was in the process of adjudicating his claims.  It was rather imprudent on the part of the Plaintiff, in my opinion, to neglect to communicate his complaints regarding the variation in his employment terms and conditions to his employer before running to the Labour Commission to file his complaint and thereafter, refuse to report for work not knowing how the Labour Commission’s adjudication would turn out.  \r\nI therefore find that in the light of the terms of the Plaintiff’s employment contract, it was the Plaintiff who terminated his own employment contract.  Plaintiff, by his conduct in refusing to report to work in December, 2009 is deemed to have impliedly resigned from his job.  He effectively terminated his employment contract by his absence from work and the 1st Defendant, therefore, was not even required to issue Exhibit “7” to dismiss him.  \r\nThe Plaintiff asked for damages for unfair termination arising from an alleged breach of his employment contract.  Generally, a court is enjoined to award damages in the event of a breach of a contract with the objective of placing the injured party or the innocent party, as far as money can do it, in the position he would have been in had the breach not occurred.  See the case of ROYAL DUTCH AIRLINES (KLM) AND ANOTHER v. FARMEX LTD. [2 G.L.R] 623, S.C.  Having held that the termination of the contract of employment was lawful, breach of contract does not arise and Plaintiff is not entitled to any award of damages.  \r\nSSNIT Issue  \r\nI will now deal with the Plaintiff’s claim for social security contributions due him and unpaid by the Defendants to SSNIT.  \r\nUnder Section 70 of the Labour Act, an employer may, with the consent of the worker, deduct from the remuneration of the worker, any amount due from the worker in respect of contributions to any provident, pension, or other fund or scheme agreed to by the worker.  Additionally, by Section 3 of the National Pensions Act, an employer of an establishment is required to deduct from the salary of every worker in the establishment immediately at the end of the month, a worker’s contribution of an amount equal to five and half per centum of the worker’s salary for the period, irrespective of whether or not the salary is actually paid to the worker. \r\nIt is the case of the Defendants that the 1st Defendant owed the Plaintiff only one (1) month of social security contribution in 2005 because although the Plaintiff was employed from February 2, 2005, he was on probation for 3 months up till April 2, 2005.  The submission by the Defendants is that an employee who is on probation is not entitled to social security contributions until his employment is confirmed after the probationary period.  \r\n17 \r\nSection 211 of the National Pensions Act defines a worker as follows:  \r\n“worker” includes a person who is employed for salary in any kind of work, manual or otherwise, in or in connection with the work of an establishment, and who gets his salary, directly or indirectly from the employer, and any person employed by or through a contractor in or in connection with the normal work of the establishment, who is (a) employed in this country but not as a member of the crew of any ship; or (b) employed as a permanent resident of Ghana, (i) as a member of the crew of a ship, the owners of which have an office or agents in Ghana; or  (ii) outside Ghana but employed by an employer in Ghana. \r\nFrom the above, the position of the Defendants is not the correct position of the law. In respect of social security contributions, the National Pensions Act makes no such distinction between a worker on probation and one whose employment has been confirmed.  \r\nI therefore hold that the 1st Defendant owes the Plaintiff four (4) months in social security contributions and not one (1) month as claimed by the Defendant in the year 2005. \r\nSecondly, the Plaintiff claims that the 1st Defendant owes him four (4) months social security contributions for the year 2009.  According to him, he worked for twelve (12) months in 2009 and Exhibit “D” shows payment of eight (8) months social security contributions. The Defendants however submit that the 1st Defendant owes only three (3) months because the Plaintiff worked for eleven (11) months and not twelve (12) months in 2009.  Having held earlier that there is no evidence that the Plaintiff worked in December 2009, I agree with the Defendants and hold that the 1st Defendant owes the Plaintiff three (3) months social security contributions. \r\nLeave Entitlement Issue \r\nI now turn my attention to the issue of whether the Plaintiff was denied leave and if so, for how long? \r\nIt is Plaintiff’s claim that he was not granted leave for the period he worked with the 1st Defendant, which period will be deemed to commence from 2nd February, 2005 (See Exhibit “A”) till February, 2007 when the Plaintiff resigned from Classfam Pharmacy, resuming in July 2007 and ending in November, 2009 (as I have held earlier that the Plaintiff terminated his employment contract in the month of December, 2009) totaling a period of four (4) years and four (4) months.  The Defendants, of course, deny this allegation.  However, they provided the court with no evidence to corroborate their denial.  Indeed, by Section 27 (2) of the Labour Act, the 1st Defendant is required to keep a record showing, (a) the date of employment of each worker employed by the \r\n18 \r\nemployer and the duration of the annual leave to which the worker is entitled, (b) the dates on which the annual leave is taken by each worker, and (c) the remuneration received by each worker in respect of the annual leave.  And by Section 27(1) of the Labour Act, the 1st Defendant is further required to give each worker, as much as possible, notice of the date of commencement of the annual leave, at least thirty (30) days before the worker takes the leave. \r\nIt stands to reason that all these reporting requirements on annual leave are the duty of the employer to perform.  The Defendants therefore by law are deemed to have this information in their possession and should have provided the court with same.  The onus of proof that the Plaintiff did take his annual leave during his employment is on the Defendants.  Simply denying the allegations of the Plaintiff that he never took his annual leave while in the employ of the 1st Defendant does not discharge the onus on the Defendants to prove that the 1st Defendant carried out its statutory duty under the Labour Act.  I will apply the principle in the case of MAJOLAGBE v. LARBI, supra, and find that the uncorroborated denials of the Defendants is not believable and rather it is more probable than not that the Plaintiff never took his annual leave while he was in the employ of the 1st Defendant.  By Section 30 of the Labour Act, the termination of the Plaintiff’s employment is not to affect his leave entitlements earned, if any. \r\nI find that Plaintiff is entitled to not less than fifteen (15) working days’ leave with full pay in each year that he worked for the 1st Defendant continuously by Section 20(1) of the Labour Act.  The law defines the expression “full pay” to mean the worker’s normal remuneration, without overtime payment, including the cash equivalent of a remuneration in kind.  See Section 20 (2) of the Labour Act.  The Plaintiff is therefore entitled to fifteen (15) working days’ full pay for the four (4) years and four (4) months that he worked for the 1st Defendant, as follows:   \r\n1. Fifteen days’ full pay at ¢1,600,000.00, (equivalent to GH¢160) per month times the period of two (2) years from February 2005 to February, 2007, totalling GH¢160.00 2. Fifteen days’ full pay at GH¢300.00 per month times the period of two years (2) and four (4) months from July 2007 to November, 2009 totalling GH¢325.00 \r\nThe Plaintiff is therefore entitled to be paid GH¢ 485.00 in annual leave entitlements by the 1st Defendant. \r\nNegligence Issue  \r\nI now turn my attention to the counterclaim filed by the Defendants and deal with the issue arising therefrom, as to whether there was any financial loss incurred by the Defendants and whether Plaintiff was liable for that loss. \r\nThe elements of negligence are that a person who is claimed to have been negligent must owe a duty of care to the claimant, the person must have breached the duty of care that he owes to the \r\n19 \r\nclaimant, and the claimant must suffer damage as a result of the person’s breach of his duty of care.  \r\nIn ANN v. MERTON LONDON BOROUGH COUNCIL, (1978) AC 1004 at 1027, Lord Wilberforce laid down two critical tests for establishing a duty whenever there is a breach of the duty.  He said: “. . . the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist.  Rather the question has to be approached in two stages.  First, one has to ask whether, as between the alleged wrongdoer and the person who suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises.  Secondly, if the first question in answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty of the class of person to whom it is owed or the damage to which a breach of it may give rise.”  \r\nAlso, Section 11 of the Labour Act states the duties of workers as follows:  \r\n“Without prejudice to the provisions of this Act, the duties of a worker in a contract of employment or collective agreement, include the duty to: (a) work conscientiously in the lawfully chosen occupation; (b) report for work regularly and punctually; (c) enhance productivity; (d) exercise due care in the execution of assigned work; (e) obey lawful instructions regarding the organisation and execution of the worker’s work; (f) take reasonable care for the safety and health of fellow workers; (g) protect the interests of the employer; and (h) take proper care of the property of the employer entrusted to the worker or under the immediate control of the worker.” \r\nIt is thus obvious that the Plaintiff owed a duty of care to the 1st Defendant, thus the first element of the principle of negligence is settled. The second and third elements are what this court has been asked to determine. \r\n20 \r\nThe basic rule in any negligence claim is that he who avers must prove. See the cases of BANK OF WEST AFRICA LTD. v. ACKUN and ABABIO v. AKWASI III, supra.  CHARLESWORTH’S LAW OF NEGLIGENCE, 2nd ed., p. 23 states that: \r\n"The party seeking to recover compensation for damage must make out that the party against whom he complains was in the wrong. The burden of proof is clearly upon him, and he must show that the loss is to be attributed to the negligence of the opposite party. If at the end he leaves the case in even scales and does not satisfy the court that it was occasioned by the negligence or default of the other party he cannot succeed."  It is up to the 1st Defendant, then, to prove, on the balance of probabilities, that the Plaintiff was negligent. The 1st Defendant must therefore prove that the Plaintiff breached his duty of care and this breach resulted in the loss in its stock to the value of GH¢ 12,349.27.    \r\nDid the Defendants prove that the Plaintiff breached his duty of care? According to Alderman B, in BLYTH v. BIRMINGHAM WATERWORKS (1856) 11 EXCH. 781.  “Negligence is the omission to do something, which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do.”   \r\nIn general, it is required that in negligence cases, the defendant must measure up to an objective standard.  The question the court must ask is: “What should the reasonable person have done, or not done, in the circumstances of the case?” and not “What could the Defendant have done?” The legal standard is not dependent on the defendant but of “a man of ordinary prudence”, a man using “ordinary care and skill”, or a “hypothetical” man. See the following cases: VAUGHAN v. MENLOWE (1837) 3 BING NC 468 at475 per Tindal CJ, HEAVEN v. PENDER (1883) 11 QBD 503 at 507 per Brett MR., and KING v. PHILLIPS [1953] 1 QB 429 at 441; [1953] 1 ALL ER 617 at 623 per Denning L.J, CA.  \r\nTo prove that the Plaintiff breached his duty of care, the Defendants were required to submit evidence that showed the Plaintiff did not meet the objective test of a prudent and reasonable person in the performance of his duties.  From the record of proceedings, the Defendants did not adduce evidence to establish that the Plaintiff’s actions violated the objective test stated above. The Defendants instead chose to rely on the explanations the Plaintiff gave as the possible causes of the shortfall in the stock (See Exhibit “6”). The record of proceedings shows the following exchanges during the cross examination of the Plaintiff:   \r\n“Q: You were appointed at all material time that you worked with the 1st Defendant as the shop manager there is no dispute about that. A: That is correct \r\n21 \r\nQ: I will be right when I say that it was your duty to check all stocks for the 1st Defendant A: That is wrong Q: What does “stock” mean in relation to 1st Defendant? A: What I know stock refers to is products in a shop Q: What were the stocks of 1st Defendant? A: They were pharmaceutical products Q: At all material times how were these stocks checked to ensure that there are no shortages A: We compare the stock input in the computer against the physical stocks Q: Who does this comparison when you say “we compare” in your last answer? A: “We” here meaning the staff Q: You mean you and the staff who worked under yourself A: Not only me and the staff but administrative manager and the account officers Q: You agree with me that in 2009 an audit report established that GH¢ 12,349.27 was recorded as shortage in 1st Defendant’s stock A: It was not an audit but stock taking Q: Take a look at this letter, please tell the Court the reasons you yourself attributed to the shortage in that colossal fire in Exhibit 6.  Plaintiff reads paragraph 1…. Q: Obviously pilfering means stealing A: Yes Q: I am putting it to you that as a manager of the 1st Defendant shop these reasons you gave for the shortage should be laid at your door step A: Not at all Q: I am putting it to you that all of it must be put at your door step A: That is wrong…”  \r\nApart from the above, the Defendants did not provide any other evidence to support their claim that the Plaintiff was negligent and therefore should be liable for the shortfall in the stock. There is no evidence that they even investigated further the reasons that the Plaintiff gave for the possible cause of the shortfall to determine whether the reasons did in fact cause the said loss of stock.  In effect, the Defendants case was limited to at best unsubstantiated allegations of theft and mismanagement levelled against the Plaintiff in their pleadings.    \r\nI find therefore that the Defendants’ case fails in so far as they failed to meet their burden to prove that the loss of stock was attributable to the Plaintiff.  The Defendants’ counterclaim therefore fails. \r\n22 \r\nCONCLUSION  \r\nIn conclusion, I find that the alteration of the Plaintiff’s contract of employment by the Defendants did not amount to unfair termination of Plaintiff’s employment with the 1st Defendant.    \r\nIn the circumstances, the Plaintiff is not eligible to an award of damages for unfair termination of his employment.    \r\nI find further that the 1st Defendant failed to pay seven (7) months of Social Security contributions on behalf of the Plaintiff. \r\nI find also that the Plaintiff is owed annual leave entitlements for the four (4) years and four (4) months that he worked for the Defendants, totaling GH¢ 485.00.  \r\nOn the Defendants’ counterclaim, I find that the Defendants failed to prove that the loss of stock in the amount of GH¢ 12,349.27 was as a result of the Plaintiff’s negligence.  \r\nORDER  \r\nAccordingly, Plaintiff’s reliefs (3) and (4) as endorsed on his amended writ of summons are hereby granted.  Judgment is entered for Plaintiff on these reliefs.  Reliefs (1) and (2) of the Plaintiff’s amended writ of summons are dismissed.   1st Defendant is hereby ordered to pay the seven (7) months of social security contributions of the Plaintiff to SSNIT.  Further, let the 1st Defendant pay the sum GH¢ 485.00, being the annual leave entitlements due to the Plaintiff from the period of four (4) years and four (4) months that he worked for the Defendants, commencing February, 2005 till February, 2007 when the Plaintiff resigned from Classfam Pharmacy, and resuming in July 2007 and ending in November, 2009.  \r\nI award costs assessed at GH¢ 5,000.00 in favour of the Plaintiff, against the 1st Defendant.       \r\n                   (Sgd) ……………………………………………… JUSTICE JENNIFER ABENA DADZIE JUSTICE OF THE HIGH COURT (COMMERCIAL DIVISION) \r\n23 \r\nCOUNSEL:   Amb. R.O SOLOMON, ESQ., OF R.O. SOLOMON CONSULTING, ACCRA, FOR PLAINTIFF CHARLES K. BENTUM, ESQ., OF AZINYO CHAMBERS, ACCRA, FOR DEFENDANTS   \r\nCASES REFERRED TO:  \r\nESSAH v. SOFO [1972] 2 GLR 301-304 TIMITIMI v. AMABEBE (1953) 14 W.A.C.A. 374 BANI v. MAERSK GHANA LIMITED [2011] 2 SCGLR, 800 TAKORADI FLOUR MILLS v. SAMIR FARIS [2005-06] SCGLR 882 TUTU v. GOGO [1969] CC, 76 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 ABABIO v. AKWASI III [1994-95] GHANA BAR REPORT, PART II, 74 SALOMON v. SALOMON & CO LTD [1896] UKHL 1 OWUSU v. R. N. THORNE LTD. AND ANOTHER [1966] GLR 90-92 MORKOR v KUMA (No. 1) [1999-2000] I GLR 721 – 740 ROBERTSON v. BRITISH GAS CORPN [1983] ICR 351 MORRIS v. CH BAILEY LTD [1969] 2 LLOYD’S REP 215. A MAUCHE (PTY) LTD VA PRECISION TOOLS v NUMSA & 4 OTHERS, (1995) 161 ILl 655 (LAC) CATAMARAN CRUISERS LTD v. WILLIAMS [1994] IRLR 176 MAJOLAGBE v. LARBI [1959] GLR 190 KLUTSE v. NELSON [1965] GLR, 537, SC  ZABRAMA v. SEGBEDZI [1991] 2 GLR 221, CA KOBEA AND OTHERS v. TEMA OIL REFINERY; AKOMEA-BOATENG AND OTHERS v. TEMA OIL REFINERY (CONSOLIDATED), [2003-2004] 2 SCGLR 1033 ROYAL DUTCH AIRLINES (KLM) AND ANOTHER v. FARMEX LTD. [2 G.L.R] 623, S.C ANN v. MERTON LONDON BOROUGH COUNCIL, (1978) AC 1004 BLYTH v. BIRMINGHAM WATERWORKS (1856) 11 EXCH. 781 VAUGHAN v. MENLOWE (1837) 3 BING NC 468 HEAVEN v. PENDER (1883) 11 QBD 503 KING v. PHILLIPS [1953] 1 QB 429; [1953] 1 ALL ER 617 ', 'links/cases/Galton Nartey v  Classfam (GH) Ltd And Anor.pdf', 'Yes', '', '2016', 'high', '', 'JENNIFER ABENA DADZIE, J', 'Civil', '', 'INDL/53/11', '', '', 'High Court, Accra', '2016-06-06', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(603, 'CB BANK LTD  HIGH STREET  VRS   ATO KWAMINA ARHIN', 'JUDGEMENT   The Plaintiff is a bank operating from various branches in Ghana including the Agona Swedru and the Boundary Road, Accra branches.  The Defendant is the Managing Director of Rinacand Company Ltd., a limited liability company incorporated under the laws of the Republic of Ghana transacting business from its offices in Agona Swedru and Accra (hereinafter “Rinacand/the Company”).  \n', '../links/cases/GCB v. Ato Kwamina Arhin.pdf', 'Yes', '', '2016', 'High Court', 'JUDGEMENT   The Plaintiff is a bank operating from various branches in Ghana including the Agona Swedru and the Boundary Road, Accra branches.  The Defendant is the Managing Director of Rinacand Company Ltd., a limited liability company incorporated under the laws of the Republic of Ghana transacting business from its offices in Agona Swedru and Accra (hereinafter “Rinacand/the Company”).  \nIn the Plaintiff’s Statement of Claim, Plaintiff claims against the Defendant, as mortgagor and also in his personal capacity, the following reliefs: 1. An order for the judicial sale of the mortgaged properties described in the attached statement of claim in recovery of the judgment debt and cost awarded in favour of the Plaintiff in Suit No. C2/9/2011 entitled Ghana Commercial Bank Ltd. v. Rinacand Company Ltd. the repayment of which has been secured by the Defendant; 2. A further order for payment of any amount outstanding on the sale of the mortgaged properties; and 3. Cost of this suit. The material facts which gave rise to the matter before me are detailed as follows in the Plaintiff’s Statement of Claim and the testimony of its representative, Kwame Adana, who \n2  \nhas worked with the Bank for twenty-two years (22), twelve (12) of those years in the Risk Management Department, of which he is the Deputy Head and the officer responsible for loans recovery.  Rinacand, as a customer of the Plaintiff bank (then known as Ghana Commercial Bank Ltd.) obtained from the Plaintiff banking facilities which included four (4) facilities granted on various dates from April 2007 to June 2008.  By the mortgages listed below the Defendant, secured the repayment of the facilities granted to the Company: (a) Mortgage dated 25 September, 1990 in respect of house numbered G/96, Nkuben Street, Agona Swedru and registered as Land Registry No. 2173/1992 with file No. CR 596/91, marked into evidence as Exhibit A; (b) Mortgage dated 25 May 1993 in respect of land/buildings known as Plot No. 509 North Kaneshie Housing Estate, Accra, registered as Land Registry No. 3645/1994 with file No. AR/SHC/381/93; Exhibit B. (c) Mortgage dated 11 January 1996 in respect of Plot No. 82 Agona Swedru Residential Area registered as Land Registry No. 408/1999 with file No. CR1076/98, Exhibit C.  \nThe Company failed to pay the facilities as agreed and the Plaintiff instituted Suit No. C2/9/2011 entitled GHANA COMMERCIAL BANK LTD. v. RINACAND COMPANY LTD. in the High Court, Agona Swedru, for recovery of monies overdue on those facilities.  See Exhibits D and E.  On 19 April, 2012, the Company, represented by Counsel, submitted to judgment on the bank’s application for summary judgment (hereinafter, the “19 April, 2012 Judgment”).  The court entered judgment on behalf of the Plaintiff in the sum of GH&#8373; 1,629,765.50, interest thereon compounded at the Plaintiff’s prevailing interest rate as at the date of judgment from 31 July 2010 to the date of final payment, and cost of GH&#8373;162,927.55.  A copy of the judgment is marked into evidence as Exhibit F.  Rinacand made some efforts at paying off the judgment debt which efforts were deemed inadequate by the Plaintiff.    \nOn 8 May 2014, the Plaintiff made a demand on the Defendant as mortgagor to pay the judgment debt then standing at GH&#8373;4,764,898.32; notifying the Defendant of its intention to enforce its rights of judicial sale of the mortgaged properties under Section 18 of the Mortgages Act, 1972, NRCD 96.  See Exhibit K.  \nAccording to the testimony of Plaintiff’s witness, Rinacand Co. Ltd. had made total payments of GH&#8373;475,000.00, GH&#8373;200,000.00 of which was paid after the institution of the present suit.  See Exhibit O.  \n3  \nIt is Plaintiff’s case that it has given the Defendant and Rinacand sufficient opportunity and time to liquidate the judgment debt and cost but they have failed to do so.  Indeed, at the close of Plaintiff’s case during the trial, Plaintiff tendered into evidence, Exhibit P, a revised statement of account in which Plaintiff had reduced the Defendant’s liability by adjusting the interest rate from 33% to 25% having struck out the penal interest rate with the final liability of Rinacand Co. Ltd. now fixed at ¢5,263,307.23 as at 31 December, 2015.  \nIn his defence, the Defendant relied on his Statement of Defence and also tetified in his own behalf.  He substantially confirmed the general facts of the transaction as narrated by the Plaintiff but went further to state that the initial amount of the facilities granted him by the Plaintiff was in the amount of GH&#8373;750,000.00, which Rinacand took to execute government construction contracts awarded to it.  Due to the failure of the government to make prompt and full payments for the works done, the Company could not redeem the loans, leading to its current indebtedness to the Plaintiff bank.  However, according to Defendant, from his own resources, he has been able to liquidate GH&#8373;550,000.00 out of the total indebtedness of the company.  \nIt is the Defendant’s further case that the parties after the 19 April 2012 Judgment, entered into negotiations and compromised the said judgment and the Plaintiff cannot go back to enforce same.  According to the Defendant, in good faith and in furtherance to the said negotiation agreement, and to the knowledge of Plaintiff, he put up his property, Plot No. 509 North Kaneshie Housing Estate, Accra for sale to fulfill the terms of the compromised agreement.  He also testified that as at November, 2015, he was in talks with a potential buyer of the property which in 2014 was valued by HFC at One Hundred and Seventy-Five (175,000.00) USD taking into consideration the extensive additional construction works done to the property.  \nBased on these facts, the Defendant contends that he has not breached the terms of the negotiations with the Plaintiff; the Plaintiff is not entitled to judgment as endorsed on the writ of summons and should be ordered to withdraw the present action and go back to the negotiation table because the negotiations are still in force.  \nThe following issues were set down after pre-trial as material to the disposition of the suit: 1. Whether or not the judgment dated 19th April, 2012 has been compromised. 2. Whether or not the Plaintiff is entitled to its reliefs 3. Any other issues arising from the pleadings. \n4   \nI have reviewed the record of proceedings and the evidence adduced in this case extensively.  I have given my thoughtful consideration to the rival contentions put forward by the parties to the suit as well as the written submissions filed by both counsel on their behalf.   The first issue that I would like to resolve is whether or not the judgment dated 19th April, 2012 has been compromised by the parties? \nContrary to Defendant’s contention that the parties after the said judgment of 19 April 2012, entered into negotiations, which compromised the said judgment, Plaintiff’s witness testified that between 21 March, 2014 and 3 December, 2014, the several attempts at settlement made by both parties were inconclusive, evidenced in the correspondence between the parties marked into evidence as Exhibits H, J, J1, K, K1, L, M, N, and N1.     \nFrom the evidence of the record and the testimony of the parties, can it be deduced that there was a conclusive agreement between the parties herein to compromise the 19 April, 2012 Judgment?  An agreement to compromise a judgment will be enforced by our courts because public policy favours the resolution of controversies through compromise and settlement rather than litigation.  A compromise, afterall, fosters amicable, efficient and inexpensive resolutions of disputes.  \nIn ALEXANDER v. HANDLEY, 123 S.W.2d 379 (Tex. Civ. App. 1939), Justice Looney defined a “compromise” as “… an agreement between two or more persons who, to avoid a lawsuit, amicably settle their differences on such terms as they can agree on.  It is essential to a compromise that there be mutual concessions or yielding of opposing claims …”.  My clear thinking, then, is that, for the 19 April, 2012 Judgment to have been compromised, the parties to this suit must have entered into some form of mutual agreement to concede or yield their opposing claims or part of those claims for the purpose of bringing an end to the litigation between the Plaintiff and Rinacand.  For a compromised agreement to be enforced by the court, there must be a final agreement between the parties to enter into such an agreement. In stating thus, I am reminded of the case of DAWSETT v. CASHMAN, 2 Haw. App. 77, 82 (Haw. Ct. App. 1981) where it was held that an agreement to compromise was in the nature of any other contract, requiring an offer and acceptance, consideration, and parties who have the capacity and authority to agree as they do.   \n5  \nThe following events are of notable import here.  By Exhibit H, Rinacand wrote to Plaintiff’s counsel initiating the proposal for payment of its debt by specified installments.  This proposal was rejected by the Plaintiff through Exhibit J.  Rinacand, subsequently, made further proposals of payment terms evidenced in Exhibits L and M.  In particular, by the terms of Exhibit M, it sought to apply payments it had made over the years to what it described as the principal and offered to conclude payment of the debt arrived at according to its own calculations by May 2016.  Excerpts of Defendant’s subsequent proposals contained in Exhibit L as follows: “Dear Sir, RE: INDEBTEDNESS OF RINACAND COMPANY LTD - A COUNTER PROPOSAL We refer to your letter dated 8th May, 2014 informing us that Ghana Commercial Bank Limited has rejected our proposal for the retirement of the outstanding balance on the loan contracted from the bank. … In pursuit of this abiding objective, we wish to submit the following proposal for the consideration of the Bank.  ... Hopefully, the bulk payments to be made in July and December, 2014 would retire the outstanding balance on the principal amount …” And in Exhibit M, Defendant further proposed the following: Dear Sir, PROPOSAL FOR INTEREST PAYMENT Further to our proposal on principal payment dated 3rd June, 2014, we wish to make proposals for the payment of the interest so far accrued on the facilities.  … We are in process of selling one of our fixed assets and expect the conclusion of documentation by the end of August…”.  \nThese proposals were however rejected by the Plaintiff and its decision conveyed by its counsel’s letter to Rinacand dated 18 September, 2014; See Exhibits N and N1.  According to Plaintiff’s evidence, in Exhibit N1, Plaintiff on 5th August, 2014, made a counterproposal to Rinacand indicating its preparedness to accept the payments stipulated therein in full liquidation of the debt, accrued interest and legal fees.    \nBefore I go further, I will set out the portion of Exhibit N1 which, according to the Plaintiff, amounted to a rejection and a counter-offer.  It reads as follows:  \n“Dear Sirs, \n6  \nRE: GHANA COMMERCIAL BANK LIMITED VRS RINACAND COMPANY LIMITED & ANOTEHR PROPOSAL FOR INTEREST WAIVER AND PAYMENT BY INSTALMENTS We advise that the Bank has considered the above-named Defendants’ Repayment Proposal dated 25th June, 2014 and declined same. However, the Bank has made a Counter-Offer as detailed below: ….. iii. The Defendants should accept the terms and conditions in writing within seven (7) days from the date of advice. iv. The Bank shall waive accrued interest of GH¢3,023,438.47 (as at 30/06/2014) and any subsequent interest. v. the waived interest of GH¢3,023,438.47 (as at 30/06/2014) shall be reinstated and the Judgment executed if they fail to accept the offer within seven days from the date of advice or failure to make the payments as indicated above without recourse to them. vi. The Security held by the Bank shall be discharged only after outstanding Guarantees issued in favour of the Ministry of Roads & Transport and the Ministry of finance & Economic Planning (under which the Defendants are liable) have been cancelled by the Bank. vii. The arrangement shall be reduced into Terms of Settlement and filed in Court.”  \nIt is noted that the proposal made by the Defendant to the Plaintiff bank is an offer which Plaintiff was required by law to accept.  In order to qualify as an acceptance, the response of the Plaintiff must be a final and unqualified assent to the terms proposed in the offer.  To conclude the contract, the Plaintiff bank’s response must be an absolute and definite acceptance of the terms proposed in the offer and must leave no room for doubt.  However, from the evidence, it has been established that the Plaintiff bank made a counter-proposal.  A counter-offer or proposal constitutes a rejection of the original offer and amounts to the making of a new offer by the Plaintiff bank.  Furthermore, a counter-offer operates to destroy or nullify the original offer such that it cannot subsequently be accepted.  See the English case of HYDE v WRENCH (1840) 3 Beav. 334.    I have examined the evidence before me and I do not find any evidence put in by the Defendant to show that the Company accepted the counter-proposal of the Plaintiff.  According to Plaintiff’s case, neither Rinacand nor the Defendant had responded to its counter-proposal as at 3 December, 2014 when Plaintiff issued the present writ, even though there was evidence that Defendant sent one Jiffy Peter Aidoo to collect Exhibits N \n7  \nand N1 from its counsel’s office.  Thus, what is on record demonstrates that the Plaintiff rejected the offer made by the Company in its earlier proposal for which Exhibit N represents.  This offer, having been rejected, cannot be relied on by the Defendant to say that there was a compromise of the 19 April 2012 Judgment.     Having regard, therefore, to all the surrounding circumstances of the case, and particularly to Exhibits L, M, N and N1, as well to the previous negotiations that had already taken place between the Defendants and the Plaintiff, it seems to me that the uncontroverted evidence of the record supports a clear finding that Defendant’s offers to compromise the 19 April 2012 Judgment were never accepted by the Plaintiff nor did Defendant also accept Plaintiff’s counter-proposal.  The Defendant’s view that Plaintiff’s last counter-proposal was still open even after 3 December, 2014, is not supported by the evidence of the record.  Defendant was required by the terms of Exhibit N and N1 to accept the counter-proposal within seven days of their receipt.  Defendant never availed himself of this opportunity in writing nor in deed by making payments to amortise the loan as prescribed therein.  There was, therefore, no offer and acceptance to constitute a valid agreement or contract to compromise the 19 April 2012 Judgment.    \nI now turn my attention to the issue of whether or not the Plaintiff is entitled to its claim.    \nThe 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. See also FAIBI v. STATE HOTELS CORPORATION [1968] GLR 471-480 which 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) 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.   \nSection 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 \n8  \nproof by a “preponderance of probabilities” defined in section 12(2) as “that degree of certainty of belief in 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”.     \nFrom the foregoing, therefore, it is clear that the Plaintiff, to succeed on its claims, it assumes the onus of proving its assertions against the Defendant.  \nIt is the Plaintiffs’ case that the Defendant mortgaged his personal properties to secure payment of the judgment debts of Rinacand based on which it is entitled to an order for the judicial sale of the said mortgaged properties and a further order for payment of any amount outstanding on the sale of the mortgaged properties.    \nTo prove its claim, Plaintiff provided the court with copies of the mortgages covering these properties all of which were registered with the Land Registry under the Land Registry Act, 1962, (Act 122) in compliance with Section 3 of the Mortgages Act, 1972, (NRCD 96).  See Exhibits A, B, and C.  Plaintiff also provided the court with a copy of the 19 April 2012 Judgment, Exhibit F, which established the judgment debt entered against Rinacand in favour of the Plaintiff and Exhibit K, evidencing Plaintiff’s notice to Defendant of its intention to enforce its rights of judicial sale of the mortgaged properties under Section 18 of the Mortgages Act, 1972, NRCD 96; Exhibit G, comprising all payments made by Rinacand since Plaintiff got judgment in the High Court, Agona Swedru, in the amount of GH¢455,00.00.  Finally, Plaintiff also provided the Court with Exhibit P, a revised statement of accounts fixing the final liability of Rinacand at ¢5,263,307.23 as at 31 December, 2015 as opposed to ¢7,635,378.55 at the end of 31 November, 2015 evidenced in Exhibit G.  \nPlaintiffs’ documentary evidence was corroborated by the testimony given on oath to this court by the Plaintiff’s representative, which was not controverted by the Defendant during the trial.    \nIndeed, in his Statement of Defence, Defendant did not dispute the fact that Rinacand was indebted to the Plaintiff.  The Defendant, however, claimed that he had, out of his own personal resources, repaid GH¢550,000.00 of the loan, in contradiction to the testimony of Plaintiff’s representative that Defendant had paid GH¢455,000.00.  Yet Defendant failed to adduce any evidence in support of this assertion.  The court is therefore left with no \n9  \noption than to believe the testimony of the Plaintiff’s representative which was corroborated by the documentary evidence tendered into evidence by the Plaintiff.    \nIn making a finding on the foregoing issue, I am further 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.  \nFrom the evidence adduced in this case and the testimony of Plaintiff’s representative, I am satisfied that it is more probable than not that the Defendant has paid GH¢455,000.00 of the outstanding debt out of his own personal means, leaving ¢5,263,307.23 as the balance due and owing.    \nThe question that arises now and which requires my attention is whether or not Plaintiff is entitled to an order of judicial sale of the personal properties of the Defendant used in securing the loan facilities.    \nA review of Exhibits A, B and C reveals that the recitals of all three mortgages, in similar fashion, commence as follows: “This Mortgage is made ….Between ATO KWAMINA ARHIN ….(hereinafter called “the  Mortgagor” … of the first part AND RINACAND COMPANY LIMITED acting by its Managing Director – ATO KWAMINA ARHIN  … (hereinafter called “the Customer”) of the second part AND GHANA COMMERCIAL BANK … (hereinafter called “the Bank” …) acting by GLADYS ATTOBRAH (MRS.) … of the third part.”   \nThese recitals conclusively establish that the Defendant, as Mortgagor, personally mortgaged his personal properties to secure the loans advanced by Plaintiff bank to Rinacand, of which he was and still is the Managing Director.   Counsel for Defendant, in his written address, argues that Defendant, as Managing Director of Rinacand, is only an employee and for that matter an agent, who cannot be held vicariously liable for the actions and inactions of his principal under the rules.  Furthermore, defence counsel argues that the Defendant should not be made to carry the liabilities incurred by the Company, which is a completely different legal personality from \n10  \nthe Defendant and he cites the Supreme Court case of MORKOR vs. KUMA (1999 – 2000) 1 GLR 721 - 740 in support of this argument.  \nI must say here, that I cannot accept the arguments proffered by Counsel for the Defendant as agency does not arise in this matter at all.  The Defendant’s role as managing director and an officer of the Company is totally separate and apart from his personal obligations that arise from the fact that he used his own personal properties to secure the loans taken out by the company.  The Defendant, in this case, is not being sued on acts he may have undertaken on behalf of the Company.  It is his personal guarantee of the loans granted the Company that Plaintiff seeks to enforce.   \nIn the Supreme Court case of MORKOR v KUMA (No. 1), supra, relied on by defence Counsel, it was held that in general, unless there are circumstances justifying the lifting of the veil of incorporation, the court cannot hold a director or an officer of a limited liability company jointly liable with the company for its debts.  That case involved a sale transaction between the respondent and the first Defendant, a limited liability company. The appellant had been sued jointly with the first Defendant for the only reason that she was the Chief Executive, majority shareholder and a director of the company.  On the issue of whether the appellant had been properly joined to the suit, the court held that  “… the first Defendant was a corporate being with a capacity separate, independent and distinct from those constituting it or employed by it ... and the appellant would be a proper party to the suit only if a specific personal liability were established against her or the veil of incorporation could be lifted to make her acts synonymous with those of the first Defendant or vice versa.  [Emphasis added]. Thus, flowing from the above quote, even from the MORKOR v KUMA (No. 1) case, where specific personal liability could be established against the appellant in that case, she would have been held liable for the debts of the company.    \nPlaintiff has succeeded in establishing the fact that it has a judgment against Rinacand of which the Defendant was the Managing Director.  Plaintiff has also established the fact that the Defendant mortgaged his personal properties to secure the facilities and Rinacand failed to satisfy the judgment debt.  In such a situation, specific personal liability has been established against the Defendant in this case flowing from his personal guarantee to pay off the loans should the Company fail to do so and the law will allow the Plaintiff to fall on that personal guarantee or security provided by the Defendant, without even having recourse to lifting the veil of incorporation.  \n11  \nI therefore find that the Plaintiff has met its burden of proving that it is entitled to its reliefs.  \nCONCLUSION  \nFrom the foregoing, I am satisfied that the Plaintiff’s action succeeds and I award costs in the sum of GH¢80,000.00 in favour of the Plaintiff against the Defendant.    .   \n                                               (Sgd)  JUSTICE JENNIFER ABENA DADZIE     JUSTICE OF THE HIGH COURT     (COMMERCIAL DIVISION) COUNSEL:     R.O. SOLOMON, ESQ., OF R.O SOLOMON CONSULTING, COUNSEL FOR PLAINTIFF CHARLES ASIEDU, ESQ., OF DADZIE, AMPOFO AND ASSOCIATES, COUNSEL FOR DEFENDANT  \nCASES REFERRED TO:   ALEXANDER v. HANDLEY, 123 S.W.2d 379 (Tex. Civ. App. 1939), \nDAWSETT v. CASHMAN, 2 Haw. App. 77, 82 (Haw. Ct. App. 1981) \nHYDE v WRENCH (1840) 3 Beav. 334. \nBANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176-182 \nHUYTON-WITH-ROBY U.D.C. v. HUNTER [1955] 2 All E.R. 398, C.A.  \nFAIBI v. STATE HOTELS CORPORATION [1968] GLR 471-480 \nMAJOLAGBE v. LARBI [1959] GLR 190  \nKLUTSE v. NELSON [1965] GLR, 537, SC \nZABRAMA v. SEGBEDZI [1991] 2 GLR 221, CA. \nMORKOR vs. KUMA (1999 – 2000) 1 GLR 721 - 740 ', 'ENNIFER ABENA DADZIE, J', 'Civil', '', 'BFS/334/2014', '', '', '', '0000-00-00', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(604, 'GEORGINA MENSAH   VS.   BENJAMIN ESSAH  ', '', '../links/cases/GEORGINA MENSAH VS BENJAMIN ESSAH.pdf', 'Yes', '', '2016', 'High Court', ' By her Writ of Summons issued out at the Registry of the High Court, Accra on the 16th January, 2015, and the amended statement of claim filed on the 15th April, 2015, the claim of the Plaintiff against the Defendant is for: \r\n(1) General Damages of GH&#8373;500,000.00 for causing the death of Isaac Nuamah, her son under the below Heads. (a) Compensation for two surviving children (b) Compensation for surviving mother  (c) Compensation for father (d) Compensation for two siblings (e) Compensation for pain and suffering (f) Loss of expectation of life (g) Loss of prospective dependency (h) Funeral/Hospital expenses (i) Loss of earnings \r\nPer the records, the defendant per Counsel entered conditional appearance on the 11th February, 2015, and filed Defence on the 18th March, 2015, and further with an amended statement of Defence on the 16th June, 2016.    At the close of pleadings and at the level of application for Directions the issues set down for trial are; \r\n \r\n2 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH    \r\n(a) Whether or not the defendant was negligent in this matter (b) Whether or not the negligence of the defendant caused the death of the late ISAAC NUAMAH (c) Whether or not the late ISAAC NUAMAH was contributorily negligent (d) Whether or not the doctrine of res ipsa Luquitor is applicable in this case (e) Whether or not the plaintiff is entitled to her claim; \r\nOn the 16th June, 2015, the defendant also filed the below additional issues:- \r\n(j) Whether or not the plaintiff has capacity to persue this case against the defendant  (ii) Any other issues arising out of the pleadings.  \r\nThe case of the plaintiff as told to the court on the 19th June, 2015, is that the accident victim and now deceased late Isaac Nuamah was her biological son and was born on the 25th November, 1981.   To support her claim she tendered in evidence of the late Isaac Nuamah’s Birth Certificate which was accepted in evidence as Exhibit ‘A’.   That on the 13th December, 2014, she went to the room of the late Isaac Nuamah, her son but he was not there.   That she therefore called his phone number and somebody picked it to inform her that late Isaac was knocked down by a vehicle the previous night at the Weija Block Factory Junction.  That she rushed to the said junction and was told that the person who knocked him down, who happened to be the defendant decided to carry him to Hospital and in the process the deceased fell from the bucket of the Pickup carrying him to the Hospital, which at the time was being driven by the defendant.   That there was nobody with him in the bucket at the time.    That the Defendant did not notice this and drove all the way to the Hospital only to detect that the deceased victim was even not in the bucket of his Pickup.  That in the course of transporting him to the Hospital, the late Isaac Nuamah, her son fell down and was later conveyed to the Police Hospital, Accra.  That she followed up to the said Police Hospital and identified the deceased as her son, who had been put in the mortuary.   That at the said Police Hospital she was given the Police Corpse Identification Card, the Coroners Form and the Death Certificate (which were already signed) and same were tendered and accepted in evidence as Exhibits B, B1 and B2 respectively.   It is \r\n \r\n3 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH    \r\nfurther her case that, the Weija District Police gave her a Police Accident Report which she also tendered and same was accepted as Exhibit ‘C’. \r\nIt is further the case of the Plaintiff that, before the late Isaac Nuamah met his untimely death, he was a professional welder haven’t completed his Technical Education at Kumasi Technical Institute (KTI) and was given Certificates to that effect.   That he had also earlier on completed his J.S.S.   The said Junior Secondary School Certificate went in as Exhibit ‘D’ whilst his KTI Testimonials went in as Exhibit ‘E’. \r\nFurther that at the time late Isaac Nuamah died, he was not married but he had two children, namely Joseph Nuamah aged 11 years and Promise Nuamah also aged 4 years, and that they both attend school.   That the late Isaac Nuamah was responsible for the Educational and medical bills of his two children which responsibilities have shifted to her as the surviving mother of her late son, and so she takes care of them.    \r\nIt is further the case of the plaintiff that, she met the defendant after the funeral of her son who promised her a support in taking care of the children Nuamah left behind but never fulfilled that promise after one and half (1.5) years.    That the Defendant did not attend the funeral of her late son but sent a funeral donation of GH&#8373;800.00 in addition to GH&#8373;4,000.00 given to her earlier. \r\nIt is the case of the Plaintiff that, she made some expenses in the performance of her son’s funeral some of which were receipted.  These receipts were tendered and accepted in evidence as Exhibits F, F1, F2, F3 and F4.   Witness also tendered in evidence a copy of the Insurance Policy of the Defendant Vehicle which was also accepted as Exhibit ‘G’.   That after his death, the working tools of late Isaac Nuamah have been brought to her house and that the defendant has denied the fact that late Isaac Nuamah was her son.   \r\nPW1, Kofi Mensah Manzie, who for some reasons gave evidence on the 18th June, 2015 and earlier than the Plaintiff testified to the effect that, the late Isaac Nuamah was a grandson to him and a biological son to the Plaintiff, who happens to be his biological daughter.     \r\n \r\n4 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH    \r\nIt is his case that, the said Isaac Nuamah is dead and died out of a motor accident he had which happened to be the defendant’s vehicle.  That during the funeral of late Isaac Nuamah, the defendant’s church members brought him and the plaintiff GH&#8373;4,000.00 to support them and additional funeral donation of GH&#8373;800.00 and that Isaac Nuamah died as a result of injuries he had or sustained when he was knocked down by the defendant car.    \r\nPW2, Theodore Opoku Asare No. 35826 and a General Corporal of the Ghana Police Service, Stationed at New Weija, Accra, testified to the effect that, on the 13th December, 2013, the plaintiff came to the Police Station and identified herself as the mother of one Isaac Nuamah a deceased person who was conveyed to the Hospital by him.   That on the same 13th December, 2013 one Sergeant Edmund Teye Martey of the Dansoman MTTU brought in the defendant together with extract of the occurrence prepared by the Dansoman MTTU as well as Nissan Pickup, with registration number, GX 2238-12 and reported that, the defendant who was driving the said pickup knocked down the victim, the late Isaac Nuamah.   That the defendant was detained and the vehicle impounded.   That on the 16th December, 2013, the defendant was arraigned before the Motor Court, Accra and charged for careless and inconsiderate driving and negligently causing harm.    The said charge sheet was tendered and accepted in evidence as Exhibit ‘H’.    \r\nThe extract of the complaint and a copy of the Cautioned Statement obtained from the defendant were also tendered in evidence and accepted as Exhibits ‘J’ and ‘K’ respectively.   That he also took measurement of the scene of the accident in the presence of the defendant (then accused) and the Plaintiff.    That a Duplicate Docket has since be prepared and forwarded to the Attorney General’s Department.   Further that, Exhibits B1 and C in this case are the Coroners Form and Police Accident Report that the Plaintiff requested for from the Police. \r\nOn the 3rd December, 2015, Benjamin Essah, the defendant herein told the court that, on the 12th December, 2013, he was coming from Bogoso in the Western region of the Ghana and that after crossing the traffic light at SSC, Weija Junction in Accra, his car knocked down a certain man at about 8:30 p.m. who was later identified as the late Isaac Nuamah.  That when he got \r\n \r\n5 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH    \r\nto the traffic light, there was a green light and he drove ahead and to his surprise he did not know where the deceased gentleman came from and suddenly crossed him and so was knocked down.   That with the help of a certain man, he picked and put the victim into the bucket of the Pickup he was driving.    That he did so because the cabin of the Pickup was full and he could not waste time offloading all the goods therein.    Continuing his evidence on 19th January, 2016, Defendant said he saw the plaintiff jumped out of the bucket of his pickup so he parked.  That he saw the deceased on the road and some other cars had driven over him; and that with the help of some other people they blocked the view of the cars to stop further damaged and according to him what he meant by that was simply that, they put a lorry tyre in front of the body to stop other cars from running over him.     That he, at this time called one Police Inspector Korsah of the Wejia Police Station to inform him of what had happened to him.   That what happened was a purely accident case because prior to the incident, he did not see the victim.    That he immediately, put the victim back into the bucket of his car because the cabin was full of goods with the view to rushing him to the Hospital but the victim finally died.    That when he died as a result of the incident, he did a lot for the victim’s family including the following; \r\n(a) Mortuary fee (b) Coffin (c) Burial expenses and carried (d) The funeral expenses \r\nThat the accident occurred in between the zebrah crossing and the traffic light and therefore did not occur in the zebrah crossing.     That the plaintiff told him the deceased victim had two children.   Further that since the incident, he has not been prosecuted by the Criminal Motor Court; and that he has been reporting to the Police, Weija Division or Command. \r\nNow, and as by Law established, the burden of proof in a Civil Case lies on the party who makes a particular claim to adduce credible evidence to support his or her case.     \r\n \r\n6 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH    \r\nInfact Section 11 (4) and 12 of the Evidence Act, 1975 (NRCD 323) states that, the standard of proof in all Civil cases is one on “a balance of probabilities” which was cited with approval by the Supreme Court in the case of ADWUBENG VRS DOMFEH [1996-97] SCGLR 660 (a) page 662 as follows and I quote; \r\n “By sections 11 (4) and 12 of the Evidence Act 1975 [NRCD 323] the standard of proof    in all civil cases is proof by preponderance of probabilities no exceptions were made”. \r\nFurther, in the case of FOSUA AND ADU-POKU VRS ADU-POKU [2009] SCGLR 310, their Lordships observed as follows; “Section 11(4) of the Evidence Act puts the obligation of producing evidence on a party to produce sufficient evidence so that on all the evidence, a reasonably mind could conclude that the existence of the fact was more probable than its nonexistence”. \r\nAgain, in the recent case of ACKAH VRS PERGAH TRANSPORT LTD AND OTHERS [2010] SCGLR 728 @ 736 the Supreme Court had the following to say on the Law relating to the burden of proof and I quote “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…   This is a required of the Law on evidence under sections 10 (1) and (2) and 11 (1) and (4) of the Evidence Act, 1975 [NRCD 323]”. \r\nIt is therefore my view that, the yardstick for determining in whose favour the scale of justice tilts, is dependant on the quality of evidence adduced by that person or party.    It is on record that on the 16th June, 2015, the defendant filed two additional issues one of which is “whether or not the plaintiff has capacity to persue this case against the defendant”.    The issue of capacity in every civil suit is very fundamental to the very existence of the suit for which reason I would like to handle it first.      \r\nApart from the fact that, the issue of capacity was raised in the additional issues filed on the 16th June, 2015, it was not raised anywhere in the course of the trial.   Infact, the only time the \r\n \r\n7 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH    \r\ndefendant per Counsel came very close to capacity was when the plaintiff was under crossexamination on the 14th July, 2015, and the below was what transpired between the plaintiff and the Defence’s Counsel.  \r\n (Q)   I put it to you that, you do not have the legal mandate to bring this action because   you are not the Administratrix of the Estate of the deceased? \r\n (A)   Please, I have the right to institute this action because I am his surviving mother. \r\nIt is my view that, the Defendant per Counsel was expected to file a formal application on notice on the issue of capacity to give the plaintiff the opportunity to respond adequately to that application in accordance with Law.    The Defendant did not avail himself the benefit of this procedure and merely mentioning it at the application for Directions level is not enough to say that the plaintiff has no capacity to institute the instant action. \r\nOrder 66 Rule 13 Sub Rules (a) (b) (c) and (d) of PNDCL 111 states categorically the order of priority of a grant of Letters of Administration (L/A) where a person dies intestate after the enactment of the said Law.    Infact Sub Rule (c) of the above mentioned Order 66 Rule 13 categorized surviving parents as a group of people entitled to Letters of Administration in situations as in the instant one.    The reference in Law is that, once the plaintiff in the instant suit is entitled to the grant of Letters of Administration (L/A) in respect of the Estate of the deceased, she has the right and capacity to initiate any proceedings or suit in respect of her son’s Estate including the instant one.    Exhibit ‘A’ the Birth Certificate also confirms that plaintiff is the mother of the deceased.    Issue (a) as filed by the plaintiff is “whether or not the defendant was negligent in this matter”.    From her evidence to the Court on the 19th June, 2015, the plaintiff only heard of the death of her son the next morning after the incident.    She was therefore not at the scene of incident at the time it happened.     However, the defendant saw it all.    He gave the time of the accident at 8:30 pm on the 12th December, 2013, and the scene was at the SSC Weija junction in the city of Accra.    He also said he did not see the victim and that the exact spot was between the zebrah crossing and the traffic light.    The defendant never evidenced to the court that he had a defective brake system or defective head \r\n \r\n8 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH    \r\nlights, so that if he never saw late Isaac Nuamah before the incident then the probable reason could be that, he was driving at a speed not acceptable by Law in the city of Accra on that fateful day just before the incident.    The position of the Law is that the defendant owes a duty of care to all road users including the deceased Isaac Nuamah but failed to exercise that duty of care hence the accident.    The defendant again said in his evidence to the Court that, when he knocked down his victim, he became unconscious.  This was also captured in his cautioned Statement to the Police, Exhibit ‘K’ herein on his arrest after the incident.    \r\nIt is my view that, in the position that he found himself, the defendant should or ought to have known reasonably that a person who fell unconscious as a result of a vehicular knock down could regain consciousness at any time and would therefore need the attention of another person to prevent him from acting in a way that could endanger his life. \r\nIn the instant suit, it is the defendant’s own evidence that, when he knocked down Late Isaac Nuamah and he became unconscious, he put him in the bucket of his moving pick up without any person to attend to him.     \r\nPrudently, what the defendant should have done to save the life of his victim was to put him in a more enclosed and protected car like a taxi cab and made sure he was driven safely to the nearest health facility.    If he failed to do this with the excuse that the cabin of his Pickup car was full at the time with other things, then I could safely say that he was negligent both before and after the accident. \r\nOn the issue of “whether or not the negligent of the defendant caused the death of the late Isaac Nuamah”, I am of the view that the evidence on record will provide the answer.   The defendant per his own evidence did not dispute the fact that his victims, the late Isaac Nuamah died as a result of this accident.    Exhibit ‘B’ the death certificate tendered by the Plaintiff shows that the said Isaac Nuamah is dead.   The brief facts as contained in Exhibit ‘C’ dated 3rd November, 2014, and tendered by plaintiff on the 19th June, 2015, to support her case has it that, late Isaac Nuamah fell from the bucket of the Defendant’s Pick up when he was been rushed to the Hospital for treatment; and was allegedly ran over by another vehicle and died on the spot.    In \r\n \r\n9 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH    \r\nthe same Exhibit ‘C’ the Medical Officer’s Report gave the cause of death as Traumatic shock.  The evidence before this Court has it that, the deceased victim was knocked down by the defendant who in attempt to save his life put him in the bucket of his Pickup unattended to for which reasons he fell therefrom and was allegedly ran over by another vehicle.    The traumatic shock the deceased Isaac Nuamah had and died was as a result of the accident he had and it was the defendant who caused the accident.      \r\nI am therefore of the view that it was the negligence of the defendant that caused the death of the late Isaac Nuamah.     \r\nIn paragraph 13 of the defendant’s amended statement of defence filed on the 16th June, 2015, the defendant averred that, the plaintiff contributed to his own death and gave particulars of contributory negligence.   By Law the defendant is legally obliged to give credible evidence to sustain his claim.   To the surprise of the Court however, the defendant never adduced any evidence in open court to support that claim when he mounted the witness box.   The implication legally is that, he has no evidence on his claim of contributory negligence on the part of the deceased Isaac Nuamah.   \r\nThe next issue is “whether or not the doctrine of res ipsa Loquitor is applicable in this case”.   In the instant suit, it is my view that, it is the defendant who owes it a duty to explain why he decided to carry an unconscious man in the open bucket of his Pick up to the Hospital unattended to after he had knocked him down.   I have mentioned in the early part of this judgment that, what the defendant should have done prudently to save the life of his victim immediately after the accident was to have found an alternative means of transport to convey the late Isaac Nuamah to the nearest health facility. \r\nI therefore find his explanation to the effect that, he put him in the bucket of his pick up because the cabin at time was full most unacceptable, dehumanizing and reckless and it is my view that, the action by the defendant fell in all-four with the doctrine of  res ipsa Loquitor rule of evidence. \r\n \r\n10 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH    \r\nIssue (e) as raised by the plaintiff is “Whether or not the plaintiff is entitled to her claim”?   The evidence on record has it that the late Isaac Nuamah left behind two children aged (9) nine and (4) four, his mother (the plaintiff) herein, his father, Mr. Afoakwa, two other siblings and that he was a welder and aged 32 years at the time of his death.    The evidence also has it that in his life time he took care of his two children, cared for his two parents and also assisted his mother to take care of his two other siblings; because he worked and earned income.   The evidence also has it that his financial help and assistance has ceased since his death and the plaintiff and the other dependents have to contend with lose of the financial support from the deceased.      \r\nIt is in this vain that, I am of the view that the plaintiff is entitled to her claim for damages for negligently causing the death of the deceased.   After evaluating the evidence on record, the Court made the following findings of facts; \r\n(a) That on the day of this incident the defendant herein was negligent both before and after he had knocked down his victim, late Isaac Nuamah.  (b) It is also a fact that, the defendant negligence caused the death of the above mentioned deceased and not the alleged ran over by another vehicle as the defendant claims.   \r\n(c) The Court also finds as a fact that the victim, the late Isaac Nuamah fell out of the bucket of the defendant’s moving Pick up because there was no attendant to take care of him whilst in his unconscious state.  (d) It is a fact from the evidence or record that, the victim did not jump out of the bucket of the defendant’s moving Pick up as the defendant wants the court to believe. \r\nI believe and hold the view that, the Plaintiff has been able to persuade me, based of course on the evidence on record that, her side of the case is more probable for which reason I enter judgment for the Plaintiffs on the reliefs (a) to (j) as stated in the amended statement of claim filed on the 15th April, 2015.   The court has observed however that, with the exception of relief (i) which relates to the funeral and hospital expenses, all the other reliefs fall within the category of general damages.   The Courts in Ghana in assessing genera damages in running down actions such as the instant one normally resort to the procedure or method which has become \r\n \r\n11 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH    \r\nknown as the HEADS OF GENERAL DAMAGES.   The said procedure or method has been cited with approval by the Supreme Court in the case of AMAKOM SAW MILLS VRS MANSAH, 1963 1 GLR 368  and also in the recent Court of Appeal case of AWUKU VRS MAMUNI &SULEMAN (2014) 70 GMJ 144.   \r\nIn the cases cited above Supra, general damages and awards are made under different heads of damages such as; (1) compensation for surviving mother, (2) surviving father (3) siblings, (4) compensation for pain and suffering, (5) loss of expectation of life, (6) loss of prospective dependency, (7) loss of amenities of life and (8) loss of earnings.  In the early part of this judgment,  I mentioned per the evidence of the plaintiff that, the deceased left behind two children who are all minors, the plaintiff who is the surviving mother, Mr. Afoakwah, his surviving father and two other siblings all of whom depend on the deceased for one type of financial assistance or the other.   Applying the principle of Heads of general damages in this case under General Damages and as applied in the AMAKOM SAW MILLS, I would award the below damages; \r\na) Compensation for two surviving children- GH&#8373;100,000 (One Hundred Thousand Ghana Cedis) each. b) Compensation for surviving mother- GH&#8373; 50,000.00 (Fifty Thousand Ghana Cedis Only) c) Compensation for surviving father-  GH&#8373; 50,000 ( Fifty Thousand Ghana Cedis Only) d) Compensation for pain and suffering- GH&#8373;30,000.00 (Thirty Thousand Ghana Cedis Only) e) Compensation for loss of expectation of life- GH&#8373; 200,000.00 (Two Hundred Thousand Ghana Cedis Only) f) Compensation for loss of prospective dependency-  GH&#8373; 150,00.00 ( One Hundred And Fifty Thousand Ghana Cedis Only) \r\nIn respect of funeral and hospital bills, they fall under the category of special damages. However, in running down cases as in the instant one, the Courts have held the view that, in \r\n \r\n12 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH    \r\nassessing damages, receipts are not necessary to back the plaintiff(s) claim because of the trauma that both the victim/deceased and the surviving dependents and relatives went through during and after the incident. \r\nIn the instant suit, the special expenses made per Exhibit M, Mi, Mii is GH&#8373;495.00.    Exhibits F, F1 to F4 which cover the cost of ambulance, coffin, canopies, chairs and drinks amount to GH&#8373;1,700.00.  The Court has observed per the evidence that hiring a car from Accra to Dompoase in the Ashanti Region for the funeral also cost GH&#8373;1,000.00.    This brings the total special expenditures to: \r\na) GH&#8373; 0,495.00 b) GH&#8373; 1,700.00 c) GH&#8373; 1,000.00 \r\n           Total 3,195.00 \r\nIn respect of the issue of loss of earnings, the evidence on record is that, the late Isaac Nuamah died at the age of 32 (thirty two) years, and a welder by profession.    By Law his life expectancy is 60 years so that, but for this accident, he would have lived for the next 28 years.  He was not a salary worker and going by the principle as established by the Court of Appeal in the case of AWUKU VRS MAMUNI, it is safer to use the national minimum wage, which is GH&#8373;8.20.00  (eight cedis, twenty pesewas) as the basis for assessing damages under loss of earnings  heading and double this amount.   The reason for doubling this figure is that, it is fair and reasonable to assume that, the deceased would have improved or enhanced income if he had lived his full life and earn more than the present minimum wage.   Estimating therefore that the deceased, Isaac Nuamah who lived for 32 years at the time of his death would work for another 28 years before retiring at the compulsory age of 60 (sixty) years, he would be entitled to:- GH&#8373;16.40×30×28×12=GH&#8373;165,312.00, and for tax purposes, this amount is reduced by a third, which will bring the figure to:- GH&#8373;110,208.00.   The total awards made by the Court therefore comes to GH&#8373;790,403.00 (Seven Hundred Ninety thousand, Four and Three Ghana Cedis Only) which figure is more than the GH&#8373;500,000.00 damages claimed by the plaintiff.    \r\n \r\n13 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH    \r\nThe question therefore is whether the trial Court has power to award damages more than what the plaintiff claims on the Writ.    My answer to this question is in the affirmative, based of course on the judgment of the AMAKOM SAW MILLS case. \r\nIn that case and more particularly in holding (4) thereof, the Supreme Court had the following to say and I quote (4) “the practice in this country is that in all money claims, whether they be for liquidated or unliquidated amounts, a specific figure must, for revenue purposes, be claimed.   It was a pity that the plaintiff in the circumstances of this case should have been awarded less damages than the court had found to be due, merely because of the technicality of having claimed a lesser figure on the Writ.   In such circumstances the ends of justice will be much better served if the court exercises its powers under Order 28 Rule 12 of the Supreme (high) Court Civil Procedure Rules 1954, to amend the figure to which in its view the plaintiff is entitled”.    \r\nI find the wisdom in the Supreme Court’s decision very humane and hold the view that by way of judicial precedent, that case is applicable to the instant suit. \r\nThe Court therefore amends the claim of GH&#8373;500,000.00 as endorsed on the amended statement of claim filed on the 15th April, 2015,  to now read GHc790,403.00(Seven Hundred and Ninety Thousand Four Hundred and Three Ghana Cedis Only) to coincide with the figure to which in my view the plaintiff is entitled.  \r\nMore to this issue is the case of HANNA ASSI (NO.2) VRS GIHOC REFRIGERATION AND HOUSEHOLDS PRODUCTS LTD (2007-2008) SCGLR in which the apex Supreme Court held that, in the supreme interest of fairness and justice, and in the particular circumstances of a case the Court can award a relief to a party even though the relief might not have been claimed in the Writ and Statement of Claim.    \r\n \r\n14 JUSTICE E. K. MENSAH, JUSTICE OF THE HIGH COURT  GEORGINA MENSAH VRS BENJAMIN ESSAH     \r\nI therefore enter final judgment for the plaintiff in the sum of GH&#8373;790,403.00 to cover the general and special damages that she deserves in the circumstances of the instant suit.  \r\nCost is assessed at GH&#8373;10,000.00 (Ten Thousand Ghana Cedis Only)     \r\n              (SGD.)         JUSTICE E. K. MENSAH         JUSTICE OF THE HIGH COURT                       \r\n      LAWYERS: ALHASSAN MOHAMMED LAWAL FOR THE PLAINTIFF PRESENT    DANIEL KOOMSON FOR THE DEFENDANT  ', 'E.K. MENSAH, J ', 'Civil', '', 'BC/317/2015 ', '', '', '', '0000-00-00', ''),
(605, 'GHANA GROWTH FUND LTD.  VS.  1.  BOKAN LIMITED , KWAME DWOMOH KESSIE, PAUL EFFAH OTENG, JOSEPH OSEI, CLEMENT BORQUAYE ', '', '../links/cases/GHANA GROWTH FUND v BOKAN LTD.pdf', 'Yes', '', '2016', 'High Court', 'JUDGEMENT  \r\nThe Plaintiff herein by a writ filed on the 15th day of April 2014 seeks the following reliefs against the Defendants jointly and severally.  \r\na) Recovery of the sum of One Million, Nine Hundred and Forty One Thousand Eight Hundred and Eighty Cedis, Ninety Two Pesewas. (GH&#572;1, 941. 880.92) being the outstanding balance of the facility, as at 31st March, 2014.  \r\nb) Interest on the outstanding balance at 4% per month, compounded daily from 1st April, 2014 till final payment   c) Costs including Plaintiff’’s legal Costs.   \r\nOr in the alternative:  \r\nAn order for the judicial sale of the following properties used as collateral:  \r\n(i) No.3 Block O, house No.107 Owusu Poku Road, Ayigya, Kumasi with Certificate NO. 19171, Folio 183.  \r\n(ii) No J298/1, off Coco Beach Street, with title Certificate GA/NO. 19171, Folio 179, Vol.35  \r\nThe Plaintiff’s case is that it is a private equity company providing financial support among others to corporate entities and businesses in Ghana.  The 2nd and 3rd Defendants are directors of the 1st Defendant, a Ghanaian registered limited liability company whilst the 3rd and 4th Defendants are property owners who offered their respective properties to be used as collateral for the facility arrangement between Plaintiff and 1st Defendant.  \r\nPlaintiff avers that sometime in 2011, the 1st Defendant applied for a facility to import sugar into this country.  Further to this application, Plaintiff granted the 1st Defendant a loan of Five Hundred and Thirty Thousand, Two Hundred and Eighty Ghana Cedis, Forty Five Pesewas (GH&#572;530,280.45) to facilitate the importation of 12,500 metric tons of sugar. This facility was for a period of 360 days at an interest rate of 4% per month, compounded daily. Personal guarantees were executed by the 2nd and 3rd Defendants who are directors of 1st defendant to secure the facility.  Additionally, the 4th and 5th Defendants offered their respective properties as collateral for the due repayment of the loan facility. According to Plaintiff, the Defendants are in default of their repayment obligations such that their indebtedness to Plaintiff stood at One Million, Nine Hundred and Forty One Thousand, Eight Hundred and Eighty Ghana Cedis Ninety Two Pesewas. (GH&#572;1, 941, 880.92) as at the 31st day of March, 2014.  It is on the basis of the foregoing that Plaintiff has instituted the present action.  \r\n3  \r\nThe 1st, 2nd, 3rd and 5th Defendants filed a joint Statement of Defence to Plaintiff’s writ.  Though they admit being granted a facility by Plaintiff, they state that the amount granted them was not the total required for the said importation but merely a deposit towards same.  The 1st, 2nd, 3rd and 5 Defendants deny that any formal demands had been made on them for the repayment of the loan aside mere discussions. They challenge the accuracy of the amount stated on the Plaintiff’s writ as their level of indebtedness and counterclaim as follows:  \r\na) Accounts of the loan should be audited for the correct amount owed by the Defendants to be ascertained  \r\nb) No further interest should be charged on the loan  \r\nc) Arrangement made between the Parties for the repayment of ascertained debt to be made by installment.   The 4th Defendant who is also said to be a director of 1st Defendant, filed a separate Statement of Defence on the 13th day of March, 2015 by which he admitted offering his property as security for the facility.  In line with the defence put up by the other Defendants, the 4th Defendant contended that the amount granted them was only intended as a deposit for the total amount required.  4th Defendant also challenged the correctness of the amount being claimed by Plaintiff and counterclaimed as follows:  \r\na) Accounts of the loan should be audited for the correct amount owed by the 1st   Defendant to be ascertained.  \r\nb) Arrangements made between the Parties for the repayment of the ascertained debt to be made by installments.  \r\nAt the breakdown of pre-trial settlement, the following issues were set down for determination at the trial of the suit.  \r\n 1)  Whether the Defendants have breached the repayment obligation in respect of   the facilities granted them by Plaintiff.  \r\n2)  If so how much is owed by the Defendants.  \r\n3) Whether the Plaintiff is entitled to its Claim and Defendants to their Counterclaim.    \r\n When the Parties appeared before this Court for further directions, Counsel for the 4th Defendant informed the Court that his instructions were at an end due to the death of the 4th Defendant. This Court therefore ordered him to file the necessary application for withdrawal from the suit in line with Order 75 Rule 6 of CI 47, if he was minded to withdraw as Counsel for 4th Defendant.  Counsel however, in total disregard of the order of this Court dated the 23rd day of March, 2016 filed a process entitled “NOTICE OF TERMINATION OF INSTRUCTIONS.”  By the said notice, \r\n4  \r\nCounsel for the 4th Defendant sought to inform the Court that his instructions were at an end due to the death of the 4th Defendant. Aside the fact that there is no evidence on record substantiating Counsel’s claim that his client is currently deceased, it is trite learning that Counsel, having entered appearance on behalf of 4th Defendant, could only withdraw from the suit with leave of the Court. I am supported in this view by the case of WORLDWIDE SHIPPING V DARKO {2001-2002] GLR, 1140.  In the said case, the Court spelt out the various steps to be followed by Counsel seeking to withdraw from a suit.  The first step being the service of the notice of withdrawal on the Party whom Counsel represents.  This requirement is also specified under Order 75 Rule 6(2) of CI 47.  The said rule however provides as follows:   \r\nNotice of an application for an order under this rule shall, unless the Court otherwise directs, be served on the Party for whom the lawyer acted.    \r\nThe purport and effect of the said rule in my understanding, is to vest the Court, in appropriate cases, with the power to dispense with service of a lawyer’s application for withdrawal on the Party for whom he previously acted, if for instance, service on that Party becomes impracticable as was alleged by Counsel in this case.  \r\nConsequently, granting without necessarily admitting that the 4th Defendant is truly deceased, this Court is still vested with the power to order that service of the application for withdrawal be dispensed with. I duly drew Counsel’s attention to this fact and also to the decision in the Worldwide Shipping case (supra) but Counsel obviously chose to ignore the prompting of this Court.  \r\nHaving taken the view that the said “NOTICE OF TERMINATION OF INSTRUCTIONS” filed by Counsel for 4th Defendant was unwarranted and unknown to our rules of Civil Procedure, this Court on the 20th day of April, 2016 ruled that the 4th Defendant, in law, remained a Party to the suit and that this Court will continue to consider lawyer Y. B. Asare of Boahene & Associates as acting for him. A copy of the said ruling was per the order of this Court, duly served on Counsel for the 4th Defendant who was absent on that date but this, and all subsequent processes, including hearing notices were ignored by him. It is trite learning that service of a process on a lawyer who is on record as acting for a Party constitutes proper service on that Party. See the case of ADU V ANKOMAH [1972] 1GLR 22   \r\nHaving continuously ignored Court processes served on him, it became quite apparent to this Court that the 4th Defendant no longer intended to contest the suit. The case therefore proceeded to trial without the 4th Defendant filing a witness statement.  \r\nAt the trial, the Investment Risk Manager, Eric Asae gave evidence on behalf of the Plaintiff. In support of Plaintiff’s case, he tendered the following exhibits.   EXHIBIT A: A resolution by the board of 1st Defendant Company to access a loan facility from Plaintiff.  \r\nEXHIBIT B: A letter dated the 4th day of May, 2011 applying for a Commercial Paper of US$330.  \r\n5  \r\nEXHIBIT C: A letter dated the 4th day of November, 2011 addressed to Plaintiff applying for a Commercial Paper of Five Hundred and Thirty Thousand, Two Hundred and Eighty Ghana Cedis, and Forty Six Pesewas (GH&#572;530,280.46) for the importation of 12,500 metric tons of Brazilian sugar.  \r\nEXHIBIT D: The term and investment sheet stipulating the terms and conditions governing the loan facility granted 1st Defendant Company by Plaintiff.  \r\nEXHIBIT E, E1 AND E2:  Personal guarantees executed by the 2nd and 3rd and 4th Defendants as directors of 1st Defendant Company in favour of Plaintiff.  \r\nEXHIBIT F AND G: The title documents covering the properties of 4th and 5th Defendants respectively which were furnished as security for the loan.  \r\nEXHIBITS H AND J: Deeds of mortgage entered into between Plaintiff and the 4th and the 5th Defendants respectively.  \r\nEXHIBIT K: Defendant’s statement of account as at the 6th day of May, 2016.   \r\nPlaintiff’s witness testified that there was never a disagreement relating to the amount payable as interest on the facility and that the payment of interest could not be stopped as requested by the Defendants as the same was a major component of the agreement. He charged that, the Defendants’ call for a reconciliation of the accounts was only a ploy to delay proceedings in the suit as the amount owed by them was not in doubt.  Plaintiff lamented the lack of good faith shown by Defendants and prayed the Court to enter final judgment in its favour, against the Defendants jointly and severally. Under cross-examination, Plaintiff insisted that the Defendants were fully aware that the interest rate on the loan was not simple interest but 4% per month compounded daily as stipulated in EXHIBIT D.  The witness denied that the Plaintiff was out to “fleece” the Defendants and contended that the Defendants fully understood the terms of the loan facility.  \r\nThe 2nd Defendant in his witness statement filed on behalf of himself and the 1st, 3rd and 5th Defendants essentially admitted owing the Plaintiff but argued that the Defendants’ level of indebtedness stated by the Plaintiff had been inflated and was far in excess of the amount owed by the Defendants. The 2nd Defendant under cross- examination reiterated his admission that the Defendants indeed owed the Plaintiff but described the computation of their level of indebtedness as “usurious”.    \r\n At the end of the 2nd Defendant’s evidence, the Court found that the only issue left to be determined was the actual amount owed by Defendants to Plaintiff.  It therefore, informed Counsel of its intention to order the appointment of an independent referee \r\n6  \r\nto assist the Court determine same. The Parties however prayed that they first be given the opportunity to go into accounts themselves, failure upon which the said referee could be appointed by the Court.    \r\nOn the 17th day of November, 2016 Counsel for 1st, 2nd 3rd and 5th Defendants announced to the Court that the Defendants were submitting to judgment in respect of the amount claimed by Plaintiff following the successful reconciliation of  accounts by the Parties.   \r\nIn the result, judgement is accordingly entered for Plaintiff against the Defendants jointly and severally as follows:  \r\na)Recovery of the sum of One Million, Nine Hundred and Forty One Thousand, Eight Hundred and Eighty Ghana Cedis. Ninety two pesewas (GH&#572;1, 941. 880.92).  \r\nb) Interest on the outstanding balance at 4% per month, compounded daily, from the 1st day of April. 2014 till date of final payment.  \r\n Or in the alternative the judicial sale of the following Properties:   \r\ni) No. 3A Block O, House No 107, Owusu Poku Road, Ayigya Kumasi, with Certificate No. KA 2077, Folio 183, Vol. 3.   ii) No. J298/1, off Coco Beach Street, with  Title Certificate GA 19171, Folio 179, Vol 35.  \r\nI award costs of Three Thousand Ghana Cedis (GH&#572;3,000.00) against the Defendants jointly and severally in favour of Plaintiff.  \r\n           [SGD]  MRS. AKUA SARPOMAA AMOAH    JUSTICE OF THE HIGH COURT aey/  ', 'AKUA SARPOMAA AMOAH (MRS), J', 'Civil', '', 'RPC/150/2014', '', '', '', '0000-00-00', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(606, 'NII COMMEY DADIENKO I ,  2. NII COMMEY  VRS.  GLICO PROPERTIES  ', '', '../links/cases/GLICO JUDGMENT.pdf', 'Yes', '', '2016', 'High Court', 'JUDGMENT  \r\nOn 3rd September 2012, the plaintiffs issued out this writ of summons against the defendant in their capacity as the Chief of Koffe and Solowe Wulomo respectitively. On 29th April 2014, the plaintiffs were granted leave to amend their writ of summons and statement of claim within 5 days from 29th April 2014. No amended writ of summons was filed but in the amended statement of claim, the plaintiffs included their reliefs as follows; \r\na) Declaration that the plaintiffs and the people of Koffe are the equitable owners of the land so described in the schedule below b) An order of perpetual injunction to restrain the defendant, its lessor, assignees, agents, workers, and all who cometh unto the land at their instance from interfering in the plaintiffs quiet enjoyment of the land c) Damages for trespass \r\nThe schedule is as follows; \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 2 | P a g e  \r\nAll that piece of land situated and located at Koffe Bortianor, measuring approximately 128.18 acres and bounded on north by a proposed road measuring 1400 feet more or less, on the south by proposed road measuring 1200 feet more or less, on the east by a proposed road measuring 4600 feet more or less and on the west by a proposed road measuring 4240 feet more or less. \r\nReading the plaintiffs relief ‘a’ it can be inferred that the plaintiffs instituted this action in a representative capacity and should have endorsed the writ with a representative capacity as required by order 2 rule 4 of C.I 47 which says; \r\n1. Before a writ is filed it shall be indorsed a) Where the plaintiff sues in a representative capacity with a statement of the capacity in which the plaintiff sues.  \r\nIn Republic vs. High Court, Accra; Exparte Aryeetey (Ankrah Interested Party) (200304) SCGLR 398, the Supreme court held in its 2nd headnote that “The requirement that a party endorses on the writ the capacity in which he sues, is to ensure that a person suing in a representative capacity is actually invested with that capacity and therefore has the right to sue.” \r\nIn this case the plaintiffs did not endorse the writ as a representative action but in paragraph 3 of the statement of claim, it was pleaded as follows “the land described in the schedule below is owned and possessed by the people of Koffe, a village near Bortianor. In paragraph 5 of the statement of claim, it was pleaded that in the year 1959, the government compulsorily acquired same with the intention of using it for irrigation projects. By the plaintiffs further pleading, the defendant without the consent of the plaintiffs entered unto this land in 2012 and dug trenches preparatory towards constructing a fence wall around the whole land. \r\nThe defendant entered appearance and filed defence, which defence was amended on 27th March 2014. In the defendant’s defence, the capacity of the plaintiffs was denied and was specifically stated that the 1st plaintiff is not a chief of Koffe, which is an area within the Bortianor area, and that there is no chief or stool of Koffe.  That the 2nd plaintiff is also said to be a member of Solowe of Bortianor, which is a priestly clan at Bortianor. The defendant also pleaded that the land that it occupies is part of the land acquired by the government and since no compensation has been paid, the Bortianor stool is in discussion with the government on the payment of the compensation or release of the land to the stool. The defendant however acquired the land from the Nii Kwei Arku family which family acted per Nii Akotey IV Dzasetse and Acting Bortianor Mantse and the lawful \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 3 | P a g e  \r\nrepresentative of the Nii  Kwei Arku Family of Bortianor by way of lease dated 1st November 2000 and has since been in possession of the land and started constructing houses on it, which houses are at various stages of development. That the defendant regularized the acquisition with Nii Kwei Arku V, the occupant of Bortianor stool. \r\nAt the close of the pleadings the following issues were set down for determination; \r\na) Whether or not the village of Koffe was discovered and settled by the plaintiffs’ ancestors? b) Whether or not Koffe lands are different from Bortianor lands? c) Whether or not the plaintiffs are the Chief and Wulomo of Koffe respectively? d) Whether or not the plaintiffs were in possession of the land, the subject matter of the suit prior to government’s compulsory acquisition in 1959? e) Whether or not the plaintiffs remained in possession of the land the subject matter of the suit after the government compulsorily acquired the land but failed to utilize that land for the purpose for which it was acquired? f) Whether or not the plaintiffs are the equitable owners of the land the subject matter of this suit? g) Whether or not the Nii Kwei Arku family of Bortianor can validly make grants in respect of the land situated and lying at Koffe and being Koffe lands? h) Whether or not the defendants have since July 2012 trespassed unto the land, the subject matter of the dispute. i) Whether or not the defendants can validly claim title from the chief of Bortianor in respect to the land the subject matter of the dispute? \r\nThe following are the additional issues also set down; \r\n1. Whether or not the plaintiffs have capacity to bring action in respect to the land in dispute which is a state acquired land? 2. Whether or not the defendant has been in possession of the land in dispute since the year 2000 and constructed numerous uncompleted buildings thereon? 3. Any other issues arising from the pleadings. \r\nThe 1st plaintiff gave evidence and called three witnesses, the 2nd plaintiff however did not lead any evidence. The defendant gave evidence through Mr. Derrick Appiah Kyei who claimed to be the general manager of the defendant. \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 4 | P a g e  \r\nFrom the pleadings of the parties and their evidence, it is admitted by all the parties that the land in dispute falls within land acquired by the government. Having admitted by all the parties that the land in dispute falls within government acquired land, most of the issues set down for resolution may not be relevant. The presence of the Bortianor stool in this case would have been necessary in the resolution of some of the issues. D.W.1 however, gave evidence as Mantse of Bortianor. \r\nI believe that issues ‘d’; ‘e’; ‘f’; ‘g’; ‘h’; and ‘i’ together with additional issues 1 and 2 may be relevant but other issues may be resolved where necessary. I believe additional issue 1 is very relevant and must be determined first. \r\nFrom the pleadings of the parties and their evidence, the land in dispute falls within government acquisition. I believe the parties could have argued this issue on legal grounds as it is trite that when facts are admitted in pleadings, there is no need to lead evidence in proof. \r\nIn paragraph 5 and 6 of the plaintiffs’ amended statement of claim it was pleaded as follows; \r\n5. Plaintiffs shall contend that sometime in the year 1959, the government compulsorily acquired same with the intention of using it for irrigation projects under the name irrigation project 2 6. Plaintiffs say that no compensation was paid to them by the government, however over the years the government did not use the land for the purpose for which it was acquired and for that matter they, the pre-acquisition owners, have been in undisturbed possession for several years in the exercise of their equitable interest in the land.  \r\nThe defendant also pleaded in its paragragphs 10-14; 17; and 18 of the amended statement of defence that, the land in dispute falls within land that was acquired from the Bortianor and other stools, and that the stool has been making demand for the payment of compensation or release of the land to the stool. \r\nTo these pleading in the amended statement of defence, the plaintiffs filed a reply in paragraph 11 of the reply as follows; \r\n11. Plaintiffs in answer to paragraph 10 of the amended statement of defence says they are aware that some owners of land within that area whose lands were affected by the executive instruments compulsorily acquiring those lands to the state, had at one point or the other put in application for the release of the lands to \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 5 | P a g e  \r\nthe stools. However, that in itself does not grant the Bortianor stool the right to claim the plaintiffs’ part of the land if indeed and in fact the Bortianor stool lands properly acquired by the state do not extend to that of the plaintiff.   \r\nThe import of the pleadings of the parties above referred to is that the plaintiffs are aware of the compulsory acquisition by the government and the effort of the stools whose lands were compulsorily acquired in getting compensation paid or getting the lands released to them. \r\nApart from the pleadings, the 1st plaintiff gave evidence in chief on 26th November 2014 that in 1959, the government acquired the land at Koffe for farming, from the Koffe people. The government did not pay any compensation. Whilst the first plaintiff was under cross-examination, he admitted that the land in dispute forms part of government land, and as at today the land is still government land. P.W.1 gave evidence that he is aware that the government acquired these lands from Bortianor, Kokrobite and Weija stools for an irrigation project and that the land in dispute falls within the acquired lands. \r\nSince the plaintiffs admit that the land in dispute is government land, do they have the capacity to institute this action assuming the the government acquired the land form Koffe? What interest do the plaintiffs have in this government land? \r\nBy the authority of Memuna Moudy vs. Antwi (2003-04) 2SCGLR967 it can be said  that even if the land was acquired by the Government from the Koffe stool, the plaintiffs will not have the capacity to initiate this action, since the Supreme Court held in its holding that “land compulsorily acquired by government under the Public Lands Ordinance, CAP134 (1951 Rev) vest automatically in the government upon a publication in the gazette and further that by virtue of Section 11 of the ordinance, the acquisition operates to bar and destroy “all other estates, right, titles, remainder, reversions, limitations trusts and interests whatsoever of and in the lands acquired. \r\nEven if the land were to be for Koffe as claimed since the plaintiffs admit that the government has compulsorily acquired it, the plaintiffs as the representatives of the people of Koffe have no capacity to claim the reliefs that they are claiming against the defendant, since all interest Koffe  had in the land was forever barred or destroyed upon a publication of the compulsory acquisition in the gazette. \r\nEven though the plaintiffs did not endorse the writ and the statement of claim with the capacity that they have instituted this action, it was pleaded in paragraphs 1 and 3 of the amended statement of claim as follows; \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 6 | P a g e  \r\n1. Plaintiffs are Chief and Wulomo respectively of Koffe near Bortianor and bring this action in that capacity. \r\n3. Plaintiffs say that the land described in the schedule below is owned and possessed by the             people of Koffe a village near Bortianor.  \r\nFor this pleading, the defendants denied and pleaded that the 1st plaintiff is a member of the Solowe of Bortianor which is a priestly clan at Bortianor and that Koffe is an area within Bortianor. The 2nd plaintiff did not lead evidence but in the 1st plaintiff’s evidence in chief he gave the following evidence \r\nQ: Do you know the 2nd plaintiff; that is Numo Commey? \r\nA: Yes my Lord, I know the 2nd plaintiff \r\nQ: Who is he? \r\nA: He is the Wulomo of Bortianor, he is a member of Nii Komiteey family \r\nWhen the 1st plaintiff was under cross-examination on 15th January 2015, the 1st plaintiff gave the following answers; \r\nQ: The 2nd plaintiff, Nii Commey the Wulomo is a native of Bortianor? \r\nA: Yes my Lord \r\nQ: He is resident at Bortianor? \r\nA: Yes my Lord \r\nP.W.1 also said the plaintiffs are indigenes of Bortianor \r\nQ: You admit that up to date both Ofoliwe and Solowe people still live in Bortianor? \r\nA: Yes my Lord \r\nP.W.3 gave the following answer under cross-examination \r\nQ: This D.C Obgami was he a native of Bortianor?  \r\nA; Yes my Lord, he was a native of Bortianor \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 7 | P a g e  \r\nThe import of the evidence from the 1st plaintiff and his witnesses is that the plaintiffs are indigenes of Bortianor. As for the 2nd plaintiff, the 1st plaintiff’s own evidence is that he is the Wulomo of Bortianor and that he is not Wulomo of Koffe. \r\nNot being from Koffe as has been pleaded but being from Bortianor, the plaintiffs have no capacity to initiate this action for and on behalf of the people of Koffe, even if the land in dispute belong to the Koffe people. \r\nIt has been held in Sarkodee I vs. Boateng II (1982-83) GLR715 that “It was elementary that a plaintiff or petitioner whose capacity was put in issue must establish it by cogent evidence. And it was no answer for a party whose capacity to initiate proceedings had been challenged by his adversary to plead that he should be given a hearing on the merits because he had a cast-iron case against his opponent..” \r\nIn Fosua & Adu-Poku vs. Dufie (Deced) and Adu-Poku Mensah (2009) SCGLR310, it was held in the 6th holding that “On the facts of the instant case, the issue whether the plaintiffs had the requisite capacity to sue was mad an issue for trial…” \r\nCapacity to sue was a matter of law and could be raised by a party at any stage of the proceedings even on appeal. It could also be raised by the court suo motu. Since the plaintiffs pleaded that the land is for the people of Koffe, and evidence led by the plaintiffs’ own witnesses show that the plaintiffs are indigenes of Bortianor, and the 2nd plaintiff is the Wulomo of Bortianor, the plaintiffs will have no capacity to initiate this action even if the land was for the people of Koffe. \r\nFrom the analysis above, I hold that the 2nd plaintiff is not the Wulomo of Koffe. \r\nWith regard to the issue of the 1st plaintiff being the chief of Kofffe, I do not intend to comment on that since this court has no jurisdiction in chieftaincy matters. There is however contradictory evidence that D.C. Ogbame was not a chief. Since they said Koffe land is said to be stool land, D.C. Ogbame could not give it to P.W.3 and his father, since he was not a Chief. \r\nOn original issue ‘b’, the evidence adduced by the plaintiff supports the defendant’s case that Koffe is an area within Bortianor. \r\nThe 1st plaintiff’s evidence is that Koffe and Bortianor have a relation. The eldest son of Nii Commey left Bortianor and founded Koffe. He went to farm there. To a question by the plaintiffs’ own counsel \r\nQ: When he went there (Koffe) what did he do? \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 8 | P a g e  \r\nA: He went to farm there \r\nTo another question, the 1st plaintiff answered as follows; \r\n“When he founded Koffe, he farmed with his family and sold the products at Oduponkpehe, which is now Kasoa. Because they hailed from Bortianor, they went there during festival time. \r\nP.W.1 also gave the following evidence under cross-examination; \r\nQ: Are you aware that at a point in time the government of Ghana acquired these land from the Bortianor stool, Kokrobite stool, the Weija stool for irrigation project? \r\nA: Yes, I am aware \r\nQ: You know the land in dispute falls within the acquired lands? \r\nA: Yes I am aware \r\nQ: At a point in time, the Bortianor stool, Krokrobite stool and Weija stool petitioned the government for the release of the land to them? \r\nA: Yes I am aware \r\nIf the government acquired land from the Bortianor, Kokrobite and Weija stools for irrigation project, but not from the Koffe stool and the land in dispute falls within the acquired lands, then the land in dispute will not be for Koffe but for Bortianor or Kokrobite or Weija. \r\nP.W.3 gave evidence that he is at Bortianor but farm at Koffe and that Koffe is a farming area within Bortianor. P.W.3 gave further evidence that since the land was being developed, he went back home; that is Bortianor. \r\nThe import of these pieces of evidence is that since Koffe is a farming area within Bortianor, they go there to farm and come back to Bortianor. This may explain why the 1st plaintiff gave evidence that the 2nd plaintiff is the Wulomo of Bortianor. Apart from Bortianor that is claiming this area, the other two stools have not claimed this land. \r\nThe 1st plaintiff tendered exhibit A as the site plan covering the land that he claims to belong to Koffe. Exhibit A covers an area of 3,245.60 acres and this is more than what was contained in the schedule. Whereas the schedule said the land is 128.18 acres, exhibit A said the land covers 3,245.60 acres. Exhibit A has not been signed by the surveyor who prepared it. The Director of the Survey or his representative has also not signed it as \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 9 | P a g e  \r\nrequired by Regulation 3(1) of the Survey [Supervision and Approval of Plans] Regulation 1989 (L.I 1444). In Nortey (No.2) vs. African Institute of Journal and Communication and Others (No. 2) (2013) ISCGLR 703, in holding 4, the Supreme Court held that “The Court of Appeal had rightly held that exhibit A (a site plan) tendered in evidence by the plaintiff in apparent proof of his claim of title to the disputed land i.e. as his root of title had no probative value because it was not signed by the Director of Survey or his representative, contrary to regulation 3(1) of the Survey (Supervision and Approval of Plans) Regulations 1989 (L.I. 1444). The said regulation 3(1) made it mandatory for plans of any parcel of land attached to any instrument for registration of such instrument to be approved by the Director of Surveys or any official surveyor authorized in that behalf…” \r\nNo evidence was given as to how exhibit A came into existence. It has also not been registered to give it validity. There is no indication in exhibit A as to who that land shares boundary with. Which boundary owners were present when the 1st plaintiff went to demarcate his boundary? It has been held in the case Anto vs. Mensah (3WALR) 218, that it is a principle of native custom that where a boundary is to be demarcated this is to be done by the owners of the bounded areas acting in conjunction with each other. A unilateral attempt to demarcate by one owner is ineffective. Again in the case of Oppong Kofi and Other vs. Attibrukusu III (2011) ISCGLR 176, the Supreme Court held in its 7th holding as follows “The mode of marking out the boundaries of the land specified in the statutory declaration was not an acceptable customary law practice. The customary law was that a person could not unilaterally fix a common boundary between his land and that of an adjoining owner…” \r\nOn the other hand, the defendant tendered exhibit 2, which is a supplementary affidavit filed by the 1st plaintiff in support of their application for interlocutory injunction. In that supplementary affidavit, the plaintiff exhibited terms of settlement in a suit entitled Nii Komey Otsi Atta IV vs. Nii Akotey IV and 4 others. \r\nThe plaintiff gave evidence that Nii Komey Otsi Atta IV was Solowe family head and that he was his blood relation. In the Nii Komey Otsi Atta IV vs. Nii Akotey IV and 4 others case, the terms of settlement that was accepted by Nii Komey Otsi Atta included the statutory declaration that was registered by Nii Kwei Arku IV on 30th June 2005. Mr. Justice G.A. Aryeetey who sat in the High Court Accra gave the following ruling; \r\n“This is an originating summons filed on 21st June 2005 for the determination of the following questions; \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 10 | P a g e  \r\n1. Whether by this consent judgment the parcel of land registered as LR No 122/1997 reverses to the Bortianor stool and can only be administered by the incumbent chief of Bortianor and his elders? 2. Whether the consent judgment having been arrived at from plaintiff’s allegation of fraud against the defendants, the grants made by the 2nd defendant to other parties are null and void as the 2nd defendant obtained the parcel of land registered as LR No. 122/1997 in fraudulent circumstances? \r\nThe terms of the settlement filed by the parties, which form the basis of the consent judgment are as follows; \r\n1. That Bortianor lands are stool lands as registered per the declaration by Nii Kwei Arku IV as LR 5/1978 2. That the grant of 805 acres of land to Alrotech Co. Ltd. Purporting to be a grant form Nii Kwei Arku family is not a proper grant of Bortianor stool lands 3. That it is only the Bortianor stool represented by Bortianor Mantse with the concurrence of the accredited elders that can grant Bortianor stool lands. 4. That the parties have agreed that the above-mentioned grant to Alrotech Co. Ltd. be expunged from the records of the Lands Commission. \r\nBy the consent judgment entered for the parties on 21st June 2004 all the Bortianor lands are stool lands as registered per the statutory declaration by Nii Kwei Arku IV as LR5/1978. The court therefore declares that it is only the incumbent chief of Bortianor and his elders who can grant or alienate Bortianor stool land…” \r\nThe statutory declaration of Nii Kwei Arku IV has been tendered as exhibit 9. Even though the contents of exhibit 9 are not very clear, the site plan attached to the statutory declaration indicates that it covered 13,959.68 acres of land. \r\nConsidering the fact that the plaintiffs exhibit A covers only 3,245.60 acres, it is presumed that the 3,245.60 acres of land falls is within the 13,959.68 acres of land registered by Nii Kwei Arku IV. I am strengthened in this presumption because the plaintiff admits that the land, within which the defendant’s land falls is within the compulsorily acquired land by the government. The plaintiff has however not produced any evidence that when the government acquired the land, Koffe put in a claim for compensation. Section 4(1) of the State Lands Act, 1962 (Act 125) says; \r\n“A person who claims a right or has an interest in land subject to an instrument made under section 1 or whose right or interest in that land is affected shall, within six months \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 11 | P a g e  \r\nform the date of the publication of the instrument made under section 1, submit in writing to the Lands Commission \r\na) Particulars of the claim or interest in the land of that person b) The manner in which the claim or interest is affected by the executive instrument issued under this Act c) The extent of the damage done  d) The amount of compensation claimed and the basis for the calculation of the compensation \r\nIn the original Act, the period for submitting claims was three months but the State Lands (Amendment) Act (Act 586) of 2000 amended the three months period to six months. Apart from the fact that the plaintiff has not been able to lead evidence that Koffe has any interest in the land, they have also not led any evidence that after the acquisition Koffe made a claim on the government to release the land. In exhibit 10, Nii Anto Nyame II, Weija Mantse; Nii Ofei, Mantse of Kokrobite; Nii Akwetey IV, Bortianor Mantse; Nii Emmanuel A. Tagoe, Asafoatse and Secretary of Kokrobite; Nii Arde Nkpa, Mantse of Plerno; and Nii Ali Agbonarh, Tuba Mantse wrote to the Ministry of Food and Agriculture for the executive instrument 60 and 61 to be revoked. There is no indication in exhibit 10 that Koffe took part in the request to government to revoke the two executive instruments. I therefore hold that Koffe does not own any part of the land acquired by the government for the irrigation project.  \r\nSince, the land occupied by the defendant falls within the land acquired by the government for the irrigation project and Koffe represented by the plaintiffs does not own part of the irrigation land, I hold that the land claimed by the plaintiffs is part of the land acquired for the irrigation project from the Bortianor stool and that the land claimed by the plaintiffs is part of Bortianor land compulsorily acquired by the government. Again, even if Koffe has land as claimed by the plaintiffs, that land cannot be the land occupied by the defendan since the plaintiffs have not been able to prove the boundaries of the claimed land. \r\nIn the plaintiffs’ statement of claim, the boundaries of the land was given as follows “bounded on the north by proposed road measuring 1,400 feet more or less, on the south by proposed road measuring 1,200 feet more or less, on the east by a proposed road measuring 4,600 feet more or less, and on the west by proposed road measuring 4,240 feet more or less. The land is said to be located at Koffe Bortianor, and measures approximately 128.18 acres. \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 12 | P a g e  \r\nThe defendant denied paragraph 3 of the amended statement of claim and pleaded further that that land is part and parcel of a larger land which was the subject of a statutory declaration. \r\nThe plaintiffs’ averment having been denied, the plaintiffs are under an obligation to prove the boundaries, as held in Barkers Wood vs. Nana Fitz (2007-08) SCGLR 879, where the Supreme Court speaking through Dr. Date-Bah JSC at page 891 considered section 10(1) of the Evidence Act 1975 (NRCD 323) and held that “Since the defendant claimed that the admitted oral contract between himself and the plaintiff had been rescinded by mutual agreement, the persuasive burden clearly was on him to prove that assertion ei incumbit probation qui decit non qui negat. This burden of persuasion remains on the defendant even if the evidential burden shifts as a result of any assertion made by the plaintiff in response to this claim. The common law has always followed the common sense approach that the burden of persuasion on proving all facts essential to any claim lies on whoever is making the claim”.  \r\nSince in this case, it is the plaintiffs who claimed a particular piece of land, the plaintiffs were under an obligation to prove the boundaries of the land as held in Akoto II and Others vs. Kavege and Others (1984-86) 2GLR 365, where the Court of Appeal considered the issue of adjoining boundary between two villages or towns. The court considered the cases of Egyin vs. Aye (1962) 2GLR 187 at 191 where Van Lare JSC answered a similar point in the Supreme Court as follows “It was submitted on behalf of the appellant that the issue in the 1920 consolidated actions related to boundary only and that title was not involved. The submission is ingenious but misconceived as a boundary dispute between owners or occupiers of adjoining lands necessarily raises title to the section of land enclosed between the two conflicting boundaries asserted by the opposing parties.” \r\nThe Court of Appeal again referred to the case of Abakam Effiana Family vs. Mbibado Effiana Family (1959) GLR362 at 363-36, where the Court of Appeal held that: \r\n “We think that this case being in the nature of a boundary dispute between two adjoining land owners, and the burden therefore rested upon the plaintiffs to establish with particularity the extent of the land which they claimed and the boundaries of it…” \r\nThe Court of Appeal after analyzing these cases held that “the boundaries of the land were not established. No boundary neighbours were called to testify to the ownership of the adjoining lands. The failure to prove boundaries even of only one side was fatal and the fact that the defendant had counterclaimed did not lessen that burden.” \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 13 | P a g e  \r\nIn this case, the 1st plaintiff did not make any effort to lead evidence on the boundary as pleaded. The 1st plaintiff however led evidence on the boundaries of Koffe town. \r\nThese were the questions and the answers given by the 1st plaintiff in his evidence in chief \r\nQ: Where exactly is Koffe? \r\nA: Koffe is a town after Bortianor \r\nQ: This Koffe does it share boundaries with any town? \r\nA: Yes my Lord \r\nQ: Can you mention the towns? \r\nA: These towns are Weija, Bortianor, Kokrobite and Amanfro \r\nIf however these are said to be the boundaries of Koffe lands, then it does not reflect the boundaries pleaded in the amended statement of claim. The 1st plaintiff was challenged on the boundaries given: \r\nQ: Are you aware that Bortianor stool land share boundary with Weija stool? \r\nA: It is not true \r\nQ: I am putting it to you that your allegation that Koffe lands boundaries with Weija stool, Bortianor stool, Kokrobite and Amanfro lands is false \r\nA: It is true \r\nHaving been challenged on the boundary owners, the plaintiffs should have called their named boundary owners even if what was pleaded differed from the evidence that the 1st plaintiff gave. \r\nThe boundary owners of Koffe given by P.W.1 in evidence in chief are different from the evidence of the boundary given by the 1st plaintiff. This is evidence given by P.W.1: \r\nQ: Where exactly is this Koffe? \r\nA: Koffe shares boundaries with Ngleshie Amanfro, Tuba, Kokrobite, Oshieye, Bortianor and Weija. \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 14 | P a g e  \r\nWhereas the 1st plaintiff himself did not mention Tuba and Oshieye, P.W.1 mentioned them as boundary owners. \r\nIn the amended statement of claim the plaintiffs claimed that the plaintiffs and people of Koffe are the equitable owners of the land so described in the schedule below, which is as follows; \r\nb) An order of perpetual injunction to restrain the defendant, its lessors, assignees, agents, workers and all who cometh onto the land at their instance from interfering in the plaintiffs’ quiet enjoyment of the land. c) Damages for trespass \r\nThe reliefs claimed by the plaintiffs are such that, the plaintiffs put their title in issue. The plaintiffs should have therefore led evidence on the identity and extent of the land that they claim. The plaintiffs claim that before the government compulsorily acquired the land, they and the Koffe people were the equitable owners of the land. In Sagoe and Others vs. Social Security and National Insurance Trust (2012) 2SCGLR1093, the Supreme Court held in its first holding that “Since the claim of the plaintiffs had included damages for trespass and an order of perpetual injunction, the reliefs sought by them necessarily required their title to the lands to be determined even though there was no claim for declaration: \r\nIn this case the defendant denied that the land that they occupy had ever been for the people of Koffe, the plaintiffs should have called all the persons or towns that they shared boundary with. Interestingly, the plaintiff never mentioned any town or village that shares boundary with Koffe. The boundaries as pleaded in the plaintiffs pleading may not refer to Koffe land, but to the settlement called Koffe. Having pleaded that it is bounded on north by proposed road measuring 1,400 feet more or less, on the south by proposed road measuring 1,200 feet more or less, on the east by a proposed road measuring 4600 feet more or less and on the west by a proposed road measuring 4,240 feet more or less, the plaintiffs were under an obligation to prove these, as it has been held by the Supreme Court in the case of Hammond vs. Odoi and Another (1982-83) GLR1215, and speaking through Charles Crabbe JSC at page 1231 to 1235 of the report and concluded at page 1235 that: \r\n“Pleadings are the nucleus around which the case-the whole case- revolves. Their very nature and character thus demonstrate their importance in the 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 \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 15 | P a g e  \r\nof 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…” \r\nThe plaintiffs did not lead evidence in proof of the boundaries as pleaded. Whereas in the pleading proposed roads were said to be Koffe’s boundary, in evidence, the 1st plaintiff mentioned towns. This is a departure from the plaintiffs pleading with regard to Koffe’s boundaries. \r\nApart from the fact that the 1st plaintiff departed from the pleaded boundaries, the names that he gave as Koffe’s boundary neighbours did not appear in exhibit A being the plan of Koffe’s land. This plan has also not been registered as envisaged by section 24(1) of the Land Registry Act 1962 (Act 122). In Asare vs. Brobbey and Others (1971) 2GLR 331, at page 336 the Court of Appeal speaking through Archer J.A referred to section 24 (1) of Act 122 and posed a question \r\n“What does the phrase “shall be of no effect” mean? It undoubtedly means that it shall be of no legal effect, in other words, it is either void or a complete nullity. Briefly no legal consequences flow from its execution” \r\nThe plaintiffs also called only one of the boundary neighbours mentioned by the 1st plaintiff in his evidence to give evidence for the plaintiffs. In Akoto II and Others vs. Kavege and Others (1984-86) 2GLR365, the Court of Appeal held as one of its holdings that “…boundaries of the land were not established. No boundary neighbours were called to testify to the ownership of the adjoining lands. The failure to prove boundaries, even of only one side was fatal and the fact that the defendant had counterclaimed did not lessen that burden”. Refer also to Yaa Kwesi vs. Arhin Davies and Another (2007-08) SCGLR 580. \r\nI therefore hold that even if the land were not government land, the plaintiffs had failed to prove that identity of the land that they claim. \r\nThe defendant on the other hand has no counterclaim. The defendant gave evidence that it is in possession of the land. The plaintiffs themselves admit that the defendant is in possession of the land and had walled it. Since the land is government land, and the defendant is in possession, it is the government that can recover the land from the defendant but not the plaintiffs. In Duah vs. Yorkwa (1993-94) IGLR217, the Court of Appeal held that “It was a settled principle that a person in possession and occupation was entitled to the protection of the law against the whole world except the true owner or someone who could prove a better title…” \r\nJudgment of Nii Commey Dadienko  I Vrs. Glico Properties 16 | P a g e  \r\nAgain in Osei (substituted by) Gilard vs. Korang (2013-14) ISGLR 221 at page 234, the Supreme Court speaking through Ansah JSC, said “Now in law, possession is nine-tenths of the law and plaintiff in possession has a good title against the whole world except one with a better title. It is the law that possession is prima facie evidence of the right to ownership and it being good against the whole world except the true owner, he cannot be ousted from it”. \r\nFrom the totality of the evidence, I dismiss the plaintiffs’ claims. \r\nConsidering the fact that an Interlocutory Injunction had been placed on the land since 26th November 2012 and that injunction had stalled all developments on the land, I am of the view that cost of GHC20,000.00 may reasonably compensate the defendant for this suit. \r\nThe defendant is therefore awarded cost of GHC20,000.00  \r\n         (SGD) \r\n        JUSTICE S. H. OCRAN \r\n       JUSTICE OF THE HIGH COURT   ', 'S. H. OCRAN, J', 'Civil', '', 'FAL 894/12', '', '', '', '0000-00-00', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(607, 'GHANA REVENUE AUTHORITY   VRS   SIC INSURANCE COMPANY LTD.', '', '../links/cases/GRA v SIC.pdf', 'Yes', '', '2016', 'High Court', '\r\nJUDGMENT  \r\nThe Plaintiff is a State Agency established by an Act of Parliament with the responsibility to collect tax revenue for and on behalf of the Government of Ghana.  The Defendant, on the other hand, is an insurance company registered under the laws of Ghana. \r\nThe material facts which gave rise to the matter before me are stated in Plaintiff’s statement of claim as corroborated in material aspects by the testimony of Plaintiff’s witness, Mr. Samuel Bentil and supported by the documentary evidence adduced by the Plaintiff in support of its case. It is the testimony of Plaintiff’s witness that he is a Tax Administrator who has been working with the Plaintiff (from the then CEPS) for over twenty-seven (27) years.  He testified that he is currently the Head of the Debt Management Section of the Debt Management, Compliance and Enforcement Unit of the Office of the Commissioner General, Head Office and the facts to which he testified came to his knowledge in connection with his duties as the Head of Debt Management of the Ghana Revenue Authority and its dealings with Novel Commodities Ghana Limited, a Customs Licensed Bonded Warehouse Operator.  \r\nAccording to Plaintiff, as part of the requirement for Novel Commodities Ghana Limited to obtain a licence to engage in the business of bonded warehousing of goods under the Customs, Excise and Preventive Service (Management) Act, 1993, P.N.D.C.L. 330, as amended, it was required by \r\n2  \r\nthe Plaintiff, as condition precedent, to take out a bond guaranteeing payment in full of all revenue that would be lost to the State arising from the non-payment of customs duties, excise duties and all other lawful taxes exigible on the goods warehoused under bond in the licensed premises.  To this end, Novel Commodities Ghana Limited executed a bond for the security of the goods warehoused in its premises for the period of 10th April, 2013 to 9th April, 2014 in the sum of Five Million Ghana Cedis (GH¢5,000, 000.00) with the Defendant. The said warehouse bond was referenced as Bond No. P/102/41/4106/2012/3/Warehouse No. T/287.  A copy of the bond agreement executed between the Defendant and Novel Commodities Ghana Limited was tendered in evidence by the Plaintiff and marked as Exhibit “A”.   \r\nIt is the Plaintiff’s case that per the terms of the bond agreement, Defendant (hereinafter, referred to as “Guarantor/Defendant”), irrevocably and unconditionally guaranteed for and on behalf of Novel Commodities Ghana Limited (hereinafter, referred to as the “Principal Debtor”) to pay in full all revenue lost to the State arising from the non-payment of customs duties and all other lawful taxes exigible on goods warehoused under bond in the licensed premises. Furthermore, under the terms of the bond agreement, Plaintiff was required to notify Defendant of any loss, omission, default or breach or law which may lead to a claim under the bond within one year after the expiration of the bond.   \r\nPlaintiff states that an audit it conducted into the activities of the Principal Debtor in May, 2013 revealed a short fall of Ten Million Seven Hundred and Eighty Three, Four Hundred and Fifty Eight, Fifty-five Pesewas (GH¢10,783,458.55).  According to the evidence of the record, though the stock check exercise was conducted from May 13, 2013 and May 14, 2013, the audit reconciliation actually started from March 28, 2012 to consider all transactions conducted in the warehouse.  Consequent upon this audit exercise, by Exhibit “B”, Plaintiff, therefore, demanded from the Principal Debtor the payment of the shortfall together with a pecuniary penalty to mark the offence and serve as a deterrent, in the total amount of Twenty One Million, Five Hundred and Sixty-six Ghana Cedis, Ten Pesewas (GH¢21,566,917.10). In accordance with the terms of the bond agreement, Plaintiff, by a letter dated 25th February, 2014, made a formal demand on Defendant for payment under the bond for the full amount of the security of GH¢5,000,000.00.    \r\nIt is the case of the Plaintiff that several demands and visits to Defendant to make payment under the bond security has yielded no result.  According to the testimony of Plaintiff’s witness, on 21st October, 2013, the Debt Management, Compliance and Enforcement Unit issued a Final Demand Notice, Exhibit “C”, which was served on the Principal Debtor, but it failed to honour its debt.  By reason of this failure to pay the debt, the Commissioner General. According to the testimony of the witness, on 13th January, 2013 issued a Warrant of Distress against the Principal Debtor authorizing the levying of distress on the property of the company.  The Warrant of Distress is marked in evidence as Exhibit “D”.  \r\n3  \r\nOn the execution of the Warrant of Distress, as stated by the witness, the distress team could not lay hold of any of the property of the Principal Debtor.  It is for this reason that the Plaintiff initiated the necessary steps to realise the bond security.  It is the testimony of Plaintiff’s witness that by a letter dated 25th February, 2014, marked in evidence as Exhibit “E”, Plaintiff wrote to the Defendant demanding payment of the bond sum as required under the bond agreement.  However, the Defendant failed to honour the agreement and also failed to respond to Exhibit “E”.  \r\nThe Plaintiff, therefore contends that from the foregoing, the Defendant has shown by its conduct that unless compelled by the Court, it has no intention whatsoever to pay its just debts under the bond agreement to the detriment of the Plaintiff.  \r\nIn the Plaintiff’s statement of claim, the Plaintiff claims against the Defendant the following reliefs: \r\n    “i. Payment on the bond of GH¢5,000,000.00  ii. Interest on (i) above at the commercial bank rate from the date of notice until date of final payment. iii. Costs.”  \r\nThe evidence of the record establishes that on 9th October, 2014, the Defendant entered appearance through P.E.K Mawuvenu, Esq., Solicitor with the Defendant’s Legal Affairs Department, who on 31st October, 2014, filed a statement of defence to the suit on behalf of Defendant, albeit, out of time.   \r\nThe following issues were set down for trial after pre-trial settlement failed: 1. Whether or not there had occasioned any loss of revenue to Plaintiff as stipulated under the bond executed by the Defendant and Novel Commodities Ghana Limited? 2.  Whether or not Plaintiff notified Defendant of any loss, omission, default or breach as stipulated under the bond executed by the parties? 3. Whether or not Plaintiff made written demand on the Defendant for the revenue loss? 4. Whether or not the Plaintiff is entitled to the payment of the bond security of GH¢5 million under the bond executed by the parties?  \r\nBefore delivering my judgment, it may be necessary to give a brief procedural history of this case. After attempts at court assisted settlement of the case failed at the pre-trial settlement level, the case was referred to this court to conduct the trial.    \r\nIt is noted, that neither the Defendant nor its solicitor appeared in court to contest the trial notwithstanding the fact that the Defendant was served with several hearing notices of the scheduled dates for trial as well as Court’s Notes through its Solicitor, as evidenced by the \r\n4  \r\nnumerous affidavits of service on the record.  In fact, on the one occasion that the Defendant was represented in court, that is, on 15th February, 2016, by one Mr. Ebenezer Edzii, a Legal Assistant, he assured the court that the Defendant did receive the hearing notice for the scheduled hearing.  To assist the Defendant, the court ensured that Counsel for Plaintiff served on the representative, personally and before the court, extra copies of the Plaintiff’s Witness Statement, list of documents intended to be relied on by the Plaintiff during the trial and also the Plaintiff’s pre-trial check list.    \r\nThe court went further to painstakingly explain to the Defendant’s representative of the consequences of the Defendant’s failure to comply with the case management orders entered by the court on 27th November, 2016, including the failure to file its witness statement and pre-trial check list with the court and to serve same on the Plaintiff and further gave the Defendant an extension of time within which to comply.  Once again, the Defendant failed to comply with those orders.  For that reason, the statement of defence filed by the Defendant was struck out by the court on 29th February, 2016 in accordance with Order 32 rule 7A of the High Court (Civil Procedure) Rules, 2004, (CI 47) (as amended) by CI 87.  \r\nIn the circumstance, the only triable issue that is material to the disposition of this suit, in my view, is as to 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.  In the case of BANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176-182 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. In so holding the court applied the English case of HUYTON-WITHROBY U.D.C. v. HUNTER [1955] 2 All E.R. 398, C.A.  In the local 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 Supreme Court in the case of ABABIO v. AKWASI III [1994-95] Ghana Bar Report, Part II, 74 also had this to say, “A party whose pleadings raised an issue essential to the success of the case assumed the burden of proving such issue. The burden only shifted to the defendant when the plaintiff had adduced evidence to establish the claim”.   \r\nThe 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 \r\n5  \r\n12(2) as “that degree of certainty of belief in 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”.     \r\nFrom the foregoing, therefore, it is clear that for the Plaintiff to succeed on its claims that it ought to be granted the right to recover from the Defendant the full amount secured by the bond, it assumes the onus of proving its assertions against the Defendant. Plaintiff is therefore duty bound to establish the requisite degree of belief in my mind by adducing enough evidence to show that the likelihood of the circumstances being alleged in its pleadings is more probable than not.  It is trite learning, after all, that pleadings cannot be substituted for evidence.   Exhibit “A”, which is the bond agreement states in relevant parts as follows:  \r\n“THIS BOND is made between SIC INSURANCE COMPANY LIMITED … (hereinafter called the ‘GUARANTOR’ which expression shall include her successors and assigns) and NOVEL COMMODITIES GHANA LIMITED … (hereinafter called the ‘OPERATOR’ which expression shall include her successors and assigns) in favour of the Commissioner, GHANA REVENUE AUTHORITY (CUSTOMS DIVISION) …  AND WHEREAS the Operator is required by law to secure the revenue (Customs duties and taxes exigible on all goods warehoused under bond in the licensed premises aforesaid ---- AND WHEREAS the Commissioner has directed that the Operator shall give security in the sum of FIVE MILLION GHANA CEDIS (GH¢5,000,000.00) and has hereby approved of GUARANTOR as surety for the OPERATOR and Principal debtor of the Commissioner under section 318 of PNDC Law 330 --- “NOW THIS BOND WITNESSETH AS FOLLOWS:  1. That the GUARANTOR hereby irrevocably and unconditionally guarantees for and on behalf of the OPERATOR to pay in full all revenue lost to the State arising from the nonpayment of Customs duties, excise duties and all other lawful taxes exigible on goods warehoused under bond the said licensed premises. 2. The liability of the GUARANTOR specified in clause 1 of this bond shall in the event of revenue lost be limited to the face value of the bond and that the Guarantor’s liability shall under no circumstances exceed One Hundred percent (100%) of the amount guaranteed. 3. That the Guarantor hereby guarantees further that where any loss of revenue is established whilst the goods still remain under bond in the licensed premises aforesaid all revenue lost shall be paid on receipt of the first written demand without cavil or argument. \r\n6  \r\n4. The Commissioner shall notify the Guarantor of any loss, omission, default or breach of law which may lead to a claim under this bond within one year after the expiry of this Bond……”  \r\nA bond is usually contained in a document given by a third party in support of the obligations of another party, containing a promise to pay money immediately or on a future date.  It thereby provides an assurance or surety to the beneficiary that the contracting party will perform its obligations, and security if it does not.  A restatement of the holding of Lord Denning MR in the English case of EDWARD OWEN ENGINEERING LTD. v. BARCLAYS BANK INTERNATIONAL LTD; CA [1978] 1 All ER 976, would suggest that a contract by a third party effectively guaranteeing obligations to pay on demand within the terms of that contract, irrespective of the rights and wrongs of any dispute between the beneficiary and the principal under the terms of their separate contract, subject only to fraud, may be termed a “performance guarantee”.  \r\nIn order to give effectiveness to the bond agreement, its terms must be construed.  From the excerpts of the clauses of the bond agreement reproduced above, the following terms can be identified: \r\n(i) The Defendant irrevocably and unconditionally guaranteed for and on behalf of Novel Commodities Ghana Limited to pay in full all revenue lost to the State arising from the non-payment of customs duties and all other lawful taxes exigible on goods warehoused under bond in the licensed premises.  \r\n(ii) Plaintiff was required to notify Defendant of any loss, omission, default or breach of law which may lead to a claim under the bond within one year after the expiration of the bond.   \r\n(iii) That upon the proven breach of the principal debtor’s obligations the guarantor guarantees the payment of all revenue lost on receipt of the first written demand without cavil or argument.  \r\n(iv) The liability of the GUARANTOR, in the event of a breach of the principal debtor’s obligations, was limited to the face value of the bond, being, Five Million Ghana Cedis (GH¢5,000,000.00). \r\nThese relevant terms of the bond agreement indicate that the Defendant, referred to as “Guarantor” in the bond agreement, agreed not only to guarantee the performance of the Principal Debtor’s obligations under its contract with the Plaintiff but also agreed further that the performance of the Guarantor’s liability under the agreement would be expressly conditional upon the occurrence of the proven breach by the Principal Debtor of its obligations.  For the Plaintiff to be able to collect \r\n7  \r\non the bond in accordance with its terms, therefore, the express condition of a breach by the Principal Debtor of its obligations thereunder must have occurred.  In the Law of Guarantees, Fourth Edition by Geraldine Andrews and Richard Millet, Sweet and Maxwell 2005 at page 122, this is what the learned authors had to say: \r\n“By far, the most common type of condition precedent to the liability of the surety is an express provision which requires that the creditor should take some specified step, such as giving him notice of the default, making a demand on the surety or on the principal, or suing the principal, before he starts proceedings against the surety. In the absence of such an express provision the creditor may proceed against the surety without prior notice to him or demand against him and without taking any proceedings against the principal.... Express conditions precedent are likely to be strictly construed in accordance with the general approach to constructions of contracts of suretyship.”   \r\nPlaintiff led testimony and evidence to convince the court that the audit it conducted to consider all transactions conducted in the warehouse of the Principal Debtor from March 28, 2012 to May, 2013 revealed a short fall of Ten Million Seven Hundred and Eighty Three, Four Hundred and Fifty Eight, Fifty-five Pesewas (GH¢10,783,458.55), in breach of the Principal Debtor’s obligations under the bond agreement.  See Exhibits “A” and “B”.   \r\nThe question that arises, then, is whether a demand could be made on the Defendant Guarantor to indemnify the Plaintiff against this loss for the full value of the bond in the face of this proven breach of the Principal Debtor’s obligations?  \r\nThe excerpt of Exhibit “A” reproduced above contains a further express provision that for the Defendant Guarantor to discharge its liability to the Plaintiff, Plaintiff was required to make a written demand on the Defendant, notifying Defendant of any loss, omission, default or breach of law which may lead to a claim under the bond within one year after the expiration of the bond.  In other words, the Plaintiff could sue the Defendant to perform its obligations under the bond only after a written demand had been made on the Defendant, and that demand ought to have been done within a year of the Principal Debtor’s breach occurring. Failing to give the requisite notice would therefore lead to a discharge of the Defendant.  See The Law of Guarantees, supra, where the authors state that: “A failure on the part of the creditor to comply with a condition precedent in the guarantee (for example to give notice to a breach or default by the principal) will serve to discharge the surety.” \r\nI am satisfied from the evidence and the testimony before me that the Plaintiff did make a demand on Defendant upon the default of the Principal Debtor in the manner agreed to in the Bond Agreement. Indeed, by the letter dated 25th February, 2014, marked in evidence as Exhibit “E”, the Plaintiff made a formal demand on Defendant for payment under the bond for the full amount of the security of GH¢5,000,000.00.   This formal demand was also made within a year upon the \r\n8  \r\nsaid breach coming to the attention of the Plaintiff as the audit of the Principal Debtor’s activities was concluded in May 2013 and the formal demand notifying the Defendant of the breach was made in February 2014.  Further, I am satisfied that the Plaintiff has adduced sufficient evidence to support a finding that the Defendant failed, refused and neglected to fulfill its obligations in breach of the terms and conditions governing the bond agreement.    \r\nUpon a review of the totality of the evidence before the court, this court finds that Mr. Bentil, the Plaintiff’s witness gave credible testimony on oath before this court and his testimony sufficiently corroborated the Plaintiff’s claims and documents tendered in evidence. 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.  Consequently the Plaintiff succeeds on its claims that it ought to be granted the right to recover from the Defendant the full amount secured by the bond,  \r\nThe court finds, however, that the Defendant failed to advance any defence in its behalf to controvert the testimony of the Plaintiff’s witness and/or the documentary evidence of the Plaintiff before this court. Indeed, the statement of defence filed by the Defendant was struck out, the Defendant did not file any evidence in support of its case and finally, the Defendant failed to attend court to cross examine the Plaintiff’s witness.    \r\nThe position of the law on not cross-examining a witness after he has given his evidence in chief, is well settled. In the case of TAKORADI FLOUR MILLS v. SAMIR FARIS [2005-06] SCGLR 882, Ansah JSC referred to the case of TUTU v. GOGO, [Civil Appeal No. 25/67 dated 28th April, 1969, unreported] digested in 1969 CC, 76, where Ollenu JA stated thus:  \r\n“In law, where evidence is led by a party and that evidence is not challenged by his opponent in cross-examination, and the opponent did not tender evidence to the contrary, the facts deposed to in the evidence are deemed to have been admitted by the party against whom it is led, and must be accepted by the court.”   The breach of the Defendant’s obligations under the terms and conditions of the bond agreement thus gave the Plaintiff the right to sue for the recovery of the 100% of the face value of the bond security as claimed.  I therefore find that the Plaintiff has met its burden of proving that it has a right to recover from the Defendant GH¢5,000,000.00 with interest on the said sum at the commercial bank rate from the date of notice until date of final payment as per the reliefs (i) and (ii) endorsed on the writ of summons and the accompanying statement of claim.    \r\n9  \r\nFrom the foregoing, I am satisfied that the Plaintiffs’ action succeeds.  Judgment is entered for Plaintiff in favour of reliefs (i) and (ii) as endorsed on its writ of summons and the statement of claim.  I award costs in the sum of GH¢50,000.00 in favour of the Plaintiff against the Defendant.       \r\n                                                                                                        (Sgd)          \r\n    ……..……………………………………………….. JUSTICE JENNIFER ABENA DADZIE     JUSTICE OF THE HIGH COURT     (COMMERCIAL DIVISION)   \r\nCOUNSEL:      FREEMAN SARBAH, ESQ., OF THE LEGAL DEPARTMENT OF GHANA REVENUE AUTHORITY, HEAD OFFICE, ACCRA, COUNSEL FOR PLAINTIFF PRINCE EMMANUEL MAWUVENU, ESQ., OF THE LEGAL AFFAIRS DEPARTMENT OF SIC INSURANCE COMPANY LIMITED, ACCRA, COUNSEL FOR DEFENDANT  \r\nCASES REFERRED TO:  \r\nBANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176-182 \r\nHUYTON-WITH-ROBY U.D.C. v. HUNTER [1955] 2 All E.R. 398, C.A.   \r\nFAIBI v. STATE HOTELS CORPORATION [1968] GLR 471-480 \r\nABABIO v. AKWASI III [1994-95] Ghana Bar Report, Part II, 74 \r\nEDWARD OWEN ENGINEERING LTD. v. BARCLAYS BANK INTERNATIONAL LTD; CA [1978] 1 All ER 976 \r\nMAJOLAGBE v. LARBI [1959] GLR 190  \r\nKLUTSE v. NELSON [1965] GLR, 537, SC  \r\nZABRAMA v. SEGBEDZI [1991] 2 GLR 221, CA. \r\nTAKORADI FLOUR MILLS v. SAMIR FARIS [2005-06] SCGLR 882 \r\nTUTU v. GOGO, [Civil Appeal No. 25/67 dated 28th April, 1969, unreported] digested in 1969 CC, 76 ', 'JENNIFER ABENA DADZIE, J', 'Civil', '', 'INS/02/2014', '', '', '', '0000-00-00', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(608, 'GREAT CAPE COMPANY LTD  VRS  1. ATTORNEY-GENERAL & MINISTER FOR JUSTICE    2. MINISTRY OF FINANCE', '', '../links/cases/GREAT CAPE -(JUDGMENT).pdf', 'Yes', '', '2016', 'High Court', 'JUDGMENT \r\nPlaintiff, a company registered under the laws of Switzerland and acting through \r\nits lawful attorney, Dr. Nat Tanoh on the 15/05/15 issued a writ out of the Registry \r\nof the court seeking the following reliefs:  \r\na. A declaration that following from the admission of liability by the Attorney \r\nGeneral for and behalf of the Government of Ghana on 18th April, 2001 \r\n\r\nand again on the 8th July, 2014, the Plaintiff is entitled to an amount of \r\nUS$1,117,818.45 (One Million, One Hundred and Seventeen Thousand, \r\nEight Hundred and Eighteen US Dollars and Forty Five Cents) as damages \r\nfor breach of contract and also pursuant to S. 18(1) of the Limitations Act, \r\n1972 (NRCD 54).  \r\nb. A further declaration that the defendants are estopped from in anyway \r\ndenying the liability of the Government of Ghana in the terms as set out in \r\nrelief (a) above.  \r\nc. Interest on (a) until date of final payment.  \r\nd. Costs and such further order(s) as the honourable court may deem fit.  \r\nPLAINTIFF’S CASE \r\nPlaintiff provides the basis of his claim to the reliefs he seeks in a twenty three \r\nparagraph statement of claim that accompanied the issuance of the writ. \r\nPlaintiff avers that it entered into a contract dated 9th May 1978 with the Ghana \r\nNational Procurement Agency (GNPA) for the supply of 200,000 tonnes of \r\ncement clinker to GNPA. And that under the SMC II Government, GNPA wrongly \r\nabrogated the contract on the 23rd November 1978 after rejecting a third shipment \r\nfrom the Plaintiff.  \r\n3 | P a g e  \r\nPlaintiff further states that in 1981 a Committee of Enquiry appointed by the \r\nGovernment of Ghana established the liability of GNPA and that after negotiation \r\nbetween the parties the Plaintiff agreed to accept $400,000.00 in full and final \r\nsettlement of the GNPA’s indebtedness to the Plaintiff on condition that payment \r\nwill be made promptly. \r\nIt is Plaintiff’s case that the 2nd Defendant failed to make the payments as agreed, \r\nand that in 1987 the Solicitor General acting for the 1st Defendant agreed that an \r\ninterest of 8.5% per annum compound interest would accrue on the amount of \r\n$400,000.00.  \r\nPlaintiff then proceeds to states that in 1998, the then Minister of Finance acting \r\non the advice of the then Attorney General paid the amount of $927,000.00 to the \r\nPlaintiff.  \r\nIn February 2001 the Plaintiff petitioned the 1st Defendant for payment to it of a \r\nbalance of the amount due on the ground that there had been a miscalculation of \r\nthe amounts of interests that had accrued on the debt at the time the 2nd Defendant \r\nmade its part payment in 1998.  \r\nIt is the Plaintiff’s case that even though the 1st Defendant in a letter dated the \r\n18th April 2001 agreed through its then Attorney General, Nana Addo Dankwa \r\nAkuffo Addo and directed the 2nd Defendant to pay an outstanding debt of \r\n$1,117,818.45, the 2nd defendant has failed to make such payment. \r\n4 | P a g e  \r\n Plaintiff says that despite several requests to the 1st and 2nd Defendants to make \r\ngood their indebtedness to the Plaintiff, the Defendants have failed to make the \r\npayment but are now denying the liability of the Government of Ghana to the \r\nPlaintiff.  \r\nIt is therefore the Plaintiff’s case that since the 1st and 2nd Defendants had never \r\ndenied the Government of Ghana’s liability and the Plaintiff has at all material \r\ntimes relied on the 1st and 2nd Defendants’ promise to pay the settlement the \r\nDefendants are estopped from now denying their liability to the Plaintiff.  \r\nDEFENDANT’S DEFENCE \r\nDefendants have denied the material averments that form the basis of the claim \r\nof the Plaintiff. Defendants deny having wrongly abrogated the contract. \r\nDefendants say that the Government abrogated the contract because the contract \r\nwas entered into without following the due procedure and without knowledge and \r\nconcurrence of the GNPA Board. According to the Defendants the interest rate of \r\n8.5% agreed to be paid on the $400,000.00 was at a simple interest rate and was \r\nto accrue for a period of six years, that is 1981 to 1987. \r\nDefendants in their statement of defence claim that the letter of the 1st Defendant \r\ndated the 23rd October 1998 stated that the amount of $927,000.00 paid to the \r\nPlaintiff was in full and final settlement of the debt. And that it was after three \r\nwhole years after the Plaintiff had been paid in full that it petitioned the then \r\nGovernment claiming a miscalculation of the amount of interest. That the then \r\n5 | P a g e  \r\nAttorney-General unaware of the full facts of the negotiated settlement directed \r\nthe 2nd Defendant to make further payments to the Plaintiff.   \r\nDefendants claim that whereas they have never denied their liability they have in \r\ngood faith and in reliance on the negotiated settlement between the Government \r\nof Ghana and the Plaintiff paid promptly in 1998 all the amounts agreed on to the \r\nPlaintiff. And that if they did not make any payment in 1987, it was due mainly \r\nto the fact that after the settlement, plaintiff decided to take the matter to an \r\ninternational arbitral forum which delayed the payment and defendants cannot be \r\nheld liable for a delay emanating from Plaintiff’s own conduct. Defendants \r\naccordingly contends, therefore, that  Plaintiff is not entitled to any of its reliefs.  \r\nISSUES FOR TRIAL \r\nAt the close of pleadings, the matter was referred for Pre-Trial Conference. The \r\nsettlement having broken down, the following issues were set down for trial:  \r\n1. Whether or not the Government of Ghana through the Attorney-General \r\n(i.e the 1st Defendant) admitted its liability towards the Plaintiff on the 18th \r\nApril, 2001 and also 8th July, 2014.   \r\n2. Whether or not the Plaintiff is entitled to the payment of $1,117,818.45 for \r\nthe breach of contract by the Government of Ghana and also pursuant to \r\n6 | P a g e  \r\nsection 18(1) of the Limitation Act 1972, (N.R.C.D 54), together with \r\ninterest at the prevailing bank rate until the date of final payment.  \r\n3. Whether or not the Defendants from their conduct are stopped from \r\ndenying the liability of the Government of Ghana towards the Plaintiff.    \r\nAdditional issues filed were subsequently filed by the Attorney General when the \r\ntrial was about to commence in this court and they were:  \r\n1. Whether  or not the Government of Ghana erred in abrogating the contract \r\nbetween the Plaintiff company and the Ghana National Procurement \r\nAgency (GNPA) \r\n2. Whether or not the Plaintiff could have sold the cement rejected by the \r\nGovernment on its arrival at the Tema Harbour to mitigate its losses. \r\n3. Whether or not the Government of Ghana agreed to pay $400,000.00 in \r\nfull and final settlement of the matter in 1981. \r\n4. Whether or not at a negotiated settlement of the matter in 1987 the Plaintiff \r\ncompany and the Government of Ghana agreed that an interest rate of 8.5% \r\non the amount of $400,000.00 would be paid in full and final settlement of \r\nthe claim.  \r\n5. Whether or not it was always understood by the Plaintiff that the interest \r\nrate of 8.5% would be simple interest and whether it was stated at the \r\n7 | P a g e  \r\nnegotiation that the interest rate to be applied would be compound interest.  \r\n6. Whether or not the letter dated 23rd October 1998 by the then Minister of \r\nFinance, stated in paragraph 7 that the amount of $927,000.00 paid to the \r\nPlaintiff was in full and final settlement of the claim. \r\n7. Whether or not the $927,000.00 paid to the Plaintiff company was a \r\nunilateral decision of the Defendants and based on an erroneous calculation \r\n8. Whether or not the Plaintiff acted prudently when it waited for three years \r\nafter it had been paid an amount in full and final settlement of its claim \r\nbefore petitioning the Attorney- General claiming a miscalculation of \r\ninterest. \r\n9. Whether or not the 1st Defendant was aware of the full facts of the \r\nnegotiated settlement which had occurred between his predecessor and the \r\nPlaintiff company, when he instructed the 2nd Defendant to make further \r\npayments to the Plaintiff company. \r\n10. Whether or not the letter date 3rd October 2011 in which the previous \r\nAttorney- General stated that he only had a vague recollection of the matter \r\namounted to fully admitting the import of a letter claimed by the Plaintiffs \r\nto have been written by him in their favour. \r\n11. Whether or not the Government of Ghana has made good its indebtedness \r\nto the Plaintiff company based on the full terms of the negotiated \r\nsettlement. \r\n  \r\n8 | P a g e  \r\nEVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW \r\nThe filing of eleven additional issues by the Attorney General after the pre-trial \r\nJudge, Asiedu J. together with counsel for the parties on both sides have agreed \r\non three issues for determination; was superfluous. Indeed issues 1and 2 of the \r\nadditional issues do not arise at all for determination from the nature of the \r\npleadings and evidence adduced before the court.  \r\nIt is not the province of this court now to resurrect a dead issue as to the propriety \r\nof the abrogation of the contract between GNPA and the plaintiff in 1978 and the \r\nnecessity for the plaintiff to have mitigated his losses by selling the cement as it \r\nis implicit in the first two additional issues. That bridge has long been crossed \r\nand it served no useful purpose for the learned Chief State Attorney, Helen A. \r\nZiwu to have introduced them as an issue for determination. The court will keep \r\nclear of those additional issues and focus on the germane issues to avoid \r\ndistractions and keep the arena of conflict between the parties free from waffle \r\nand gabble. \r\nBe that as it may, the rest of the nine additional issues or so can conveniently be \r\nsubsumed under any of the three main issues for determination and that is how \r\nthe court intends to approach the resolution of the matters in controversy.   \r\nBut first some few guiding rules on burden of proof assumed by the parties in this \r\nsuit as that would be very critical in resolving the issues between the parties. It is \r\n9 | P a g e  \r\na settled principle of evidence that a party making a claim bears both the burden \r\nof producing evidence  and burden of persuasion, the two being components of \r\nthe burden of proof. The burden of persuasion is defined in section 10 of the \r\nEvidence Act, NRCD 323 to mean: \r\n  \r\n“For the purposes of this Decree, the burden of persuasion means the \r\nobligation of a party to establish a requisite degree of belief concerning a \r\nfact in the mind of tribunal of fact or the court \r\n  \r\n(2) the burden of persuasion may require a party  \r\n(a) to raise a reasonable doubt concerning the existence of a fact or  \r\n(b) to establish the existence or non existence of a fact by a \r\npreponderance of the probabilities or proof beyond reasonable doubt”  \r\nThe burden of producing evidence on the other hand is defined in section 11 as \r\nfollows:  \r\n“(1)For the purpose  of this Decree, the burden of producing evidence \r\nmeans the obligation of a party to introduce sufficient evidence to avoid a \r\nruling against him on the issue. \r\n10 | P a g e   \r\n(4) In other circumstances, the burden of producing evidence requires a \r\nparty to produce sufficient evidence so that on all the evidence a \r\nreasonable mind could conclude that the existence of a fact was more \r\nprobable than its non existence”.  \r\nPer section 14 of the Decree, a party has the burden of persuasion as to each fact \r\nthe existence or non-existence of which is essential to the claim or defence that \r\nparty is asserting whiles section 17 governs the allocation of the burden of \r\nproducing evidence. It notes that the burden of producing evidence of a particular \r\nfact is on the party against whom a finding on the fact would be required in the \r\nabsence of further proof and that the burden of producing evidence is initially on \r\nthe party with the burden of persuasion as to the fact.   \r\n  \r\nThe Supreme Court had earlier reiterated this principle in the case of ABABIO v \r\nAKWASI III [1994-95] GBR 774 where the court noted as follows:   \r\n“a party whose pleadings raised an issue essential to the success of his \r\ncase assumed the burden of proving such issue. The burden only shifted to \r\nthe defendant when the plaintiff has adduced evidence to establish the \r\nclaim” \r\nThe plaintiff having made a number of allegations and praying for remedies, how \r\n11 | P a g e  \r\ndid he go about discharging its obligations under the law? As factually, the \r\nplaintiff has the burden to prove and demonstrate that the government was truly \r\nand justly indebted to it in the sum of $US1,117,818.45.  \r\nPlaintiff testified through its lawful attorney, Dr. Nat Tanoh in line with its \r\npleadings and tendered a number of Exhibits from Ex ‘A’ to ‘W’ in an attempt to \r\nprove its claim. Pertinent among the writings or evidence tendered by the \r\nplaintiff’s attorney were Ex ‘D’, a letter from the Attorney General, Marietta \r\nBrew Appiah Oppong to the Ministry of Finance advising against any payment \r\nto Great Cape. Plaintiff contrast this writing with that of Ex ‘H’ from the same \r\nAttorney General where she had earlier advised that the Ministry of Finance pay \r\nplaintiff an outstanding amount of $1,117,818.45.  \r\nAgain Ex ‘M’ being a letter purportedly authored in 2001 by then Attorney \r\nGeneral, Nana Akuffo Addo, requesting the Ministry of Finance to pay the \r\nplaintiff an amount of $1,117,818 is relied on heavily by the plaintiff. The \r\nsubstance and the probative weight to accord to the critical exhibits relied on by \r\nthe parties would soon be made bare by the court.  \r\nDefendants, on the other hand testified through three persons, namely, Nabeela \r\nWahab, a State Attorney, Douglas Kumasi of GNPA and Major (Rtd.) M. S. Tara, \r\nChief Director at the Ministry of Finance. Witness statement was filed on behalf \r\n12 | P a g e  \r\nof one Naab Kunbuor of Ministry of Finance but as same did not avail himself \r\nfor cross examination, his witness statement in the discretion of the court was \r\nexpunged from the record in reliance on section 62 of the Evidence Act, NRCD \r\n323. The defendants also relied on virtually the exhibits tendered by the plaintiff \r\nand it was solely to avoid the danger of duplicitous evidence that the court did \r\nnot allow an exhibit that was already in evidence to be further tendered by the \r\ndefendants. Besides, exhibits 1 to 6 were tendered and admitted on behalf of the \r\ndefendants.  \r\nSo did the plaintiff who bears the burden of proof discharge them during the trial \r\nof this action?  \r\nIt is not in dispute that a contract for the supply of cement clinker was entered \r\ninto between GNPA and the plaintiff in 1978 for the supply of 200,000 tons of \r\ncement clinker and same was abrogated by the government. And it is not in \r\ndispute that a negotiated settlement was reached for the payment of an amount of \r\n$US 400.000 in 1981 and that this amount was not paid till 1998 where the \r\namount had accumulated interest to the tune of $US 944.000 on an interest of \r\n8.5% per annum les $17.000.  \r\nWhat is in dispute is whether the amount of $US927.000.00 paid to the plaintiff \r\nconstituted a final discharge of the government of Ghana’s obligation to the \r\n13 | P a g e  \r\nplaintiff in respect of the contract or there still remained, as plaintiff contends, an \r\noutstanding amount of US1,117,818.45 to be paid to it.  \r\nFrom the records and the evidence at the trial I find two main grounds which \r\nplaintiff posit for its claim and which the court must deal with to determine the \r\npropriety of the claim of the plaintiff.  \r\nThe first is the claim by the plaintiff that the amount of $US400.000 which was \r\nagreed to be due to plaintiff in 1981 and which was not paid promptly was to \r\nattract from 1981 to the date of payment a compound interest rate of 8.5% per \r\nannum and not a simple interest rate as the learned Attorney General seems to \r\nimply in Ex ‘D’. Plaintiff’s attorney makes this fundamental claim in paragraph \r\n4 of his witness statement that interest on the amount of $400.000 was to accrue \r\n8.5% per annum compound interest to the date of payment. And that the payment \r\nof $US927.000 made in 1998 was only part payment of the then amount together \r\nwith the accumulated compound interest rate standing at $US2,044,818.45. \r\nLearned Principal State Attorney confronted the plaintiff’s attorney on his claim \r\nof the application of a compound interest rate to the monies that was paid by the \r\ngovernment in the following exchanges:  \r\nQ: In paragraph 4 of your witness statement you have stated that the Solicitor \r\nGeneral in 1987 agreed that the interest on the sum of $400.000 due to the \r\n14 | P a g e  \r\nplaintiff accrued at 8.5% per annum of compound interest. Is that correct.  \r\nA: Yes My Lord.  \r\nQ: Where in the document does it say the interest is compounded.  \r\nA: It just say in paragraph 4 of interest of 8.5% per annum  \r\nQ: Does it say compound interest?  \r\nA: Not specifically.  \r\nQ: I suggest to you that defendants never agreed to pay to you the compound \r\ninterest of 8.5% on the sum of $400.000  \r\nA: I am not of that view.  \r\nQ: So you still claim that defendants agreed to pay you compound interest?  \r\nA: That compound interest claim will be clearer as proceedings go on. I believed \r\nthat.  \r\n15 | P a g e  \r\nQ: It is not your belief but what it is stated.  \r\nA: Yes as I have stated”. \r\nI do not find the claim of the plaintiff for the application of a compound interest \r\nrate from the exhibits. Plaintiff’s Attorney was unable to point out from the \r\nexhibit when asked to do so and shifted the goal post that the compound interest \r\nwas to be made clearer in the course of proceedings in the court. If anything at all \r\nthere was no clarity that the interest rate of 8.5% agreed to by the parties was to \r\nbe compounded.  \r\nInterest payment is a matter of agreement between parties as it is a policy of the \r\nlaw to give effect to what parties have agreed to in an agreement. Where parties \r\nagrees to a compound interest rate to apply to a transaction that is what a court of \r\nlaw will give meaning to. However, in the absence of an express agreement that \r\na  transaction was to be governed by a compound interest, the presumption of the \r\nlaw is in favour of a simple interest rate. This is clearly captured in Rule 1 of the \r\nCourts (Award of Interest and Post Judgment Interest) Rules, 2005 (C.I 52) which \r\nreads as follows:  \r\n “If the court in a civil cause or matter decides to make an order \r\nfor the payment of a sum of money due to a party in an action, that interest \r\nshall be calculated  \r\n16 | P a g e  \r\n(a) at the bank rate prevailing at the time the order is made \r\n(b) at simple interest \r\nbut where an enactment, instrument or agreement between the parties specifies a \r\nrate of interest which is to be calculated in a particular manner the court shall \r\naward that rate of interest calculated in that manner”.  \r\nThe reason why compound interest is not presumed to govern transactions unless \r\nit is clear is simple. That compound interest is the calculation of the agreed \r\ninterest rate on the principal plus accumulated interest. Interest paid on accrued \r\ninterest plus the principal amount cannot be exacted unless the contract stated so.  \r\nPlaintiff having failed abysmally to prove to the court that the agreement for the \r\npayment of the compensation was to be governed by a compound interest rate, I \r\nfind and hold that the  agreement for the payment of compensation  was governed \r\nby the payment of a simple interest rate and not compound interest rate as plaintiff \r\nwanted the court to believe and I so find and rule accordingly.  \r\nMy position is buttressed by Justice S. A. Brobbey in his work “Practice and \r\nProcedure in the Trial Courts and Tribunals of Ghana” that where a party fails \r\nto lead evidence to demonstrate an agreement for the payment of a compound \r\ninterest his claim must fail. See DIAB v QUANSAH [1974] 1 GLR 101. \r\nIn the address filed on behalf of the plaintiff, learned counsel for the plaintiff \r\nseems to assume that the application of compound interest rate was what was \r\n17 | P a g e  \r\nagreed without pointing out in a single exhibit tendered in court as to how plaintiff \r\narrived at this compound interest rate. That may only be the invention of the \r\nplaintiff but not anything borne out of the record at the trial.   \r\nThis then leads me to the second main ground of contention of the plaintiff for \r\nhis demand for the payment of an amount of $US1,117,818.45 as an outstanding \r\nmonies owed it by the government of Ghana. Plaintiff claim that defendants have \r\nmade admissions of the government’s continuing liability to the plaintiff and \r\nfurther claim that defendants have admitted of as a miscalculation of the interest \r\ncomponent of the monies to be paid. As part of the attempt to prove its claim, \r\nplaintiff rely on Ex ‘M’ and ‘H’ as evidence of that admission of liability by the \r\ngovernment and claim that the defendants per their conduct had made it to believe \r\nthat plaintiff was entitled to the amount of $1,117.818.45 and the court should not \r\nallow the defendants to make a volte face on their open admission of liability.   \r\nThis he does by supporting it with section 26 of the Evidence Act, NRCD 323, \r\nthe doctrine of estoppel by one’s own conduct that had made another person to \r\nbelieve a state of affairs to be true. Ex ‘M’ even though admitted into evidence \r\nneeds a careful scrutiny. It is a letter purportedly authored in April, 2001 by the \r\nthen Attorney General, Nana Akuffo Addo, wherein he notes that based upon a \r\npetition by the plaintiff company that there had been a miscalculation of the \r\ninterest component of the compensation, and recommended further payment of \r\n18 | P a g e  \r\n$1,117,818.45. It is worth noting that the basis of miscalculation that plaintiff \r\nrelies on is that a compound interest had not been used by the government which \r\nI have demonstrated that position of the plaintiff to be untenable and not in accord \r\nwith the law. And it was based on the claim of plaintiff that compound interest \r\nrate ought to have been applied to his compensation, that necessitated Nana Addo \r\nto write Ex ‘M’.  \r\nEx ‘M’ deserves more attention and scrutiny in one or two respects. All the \r\nexhibits and correspondence emanating from the Attorney-General and Ministry \r\nof Justice office is on its letter head. All the correspondence emanating from the \r\nMinistry of Finance is on the letter head of the Ministry of Finance. The only \r\nexception is Ex ‘M’ claimed to have been authored by the then Attorney General. \r\nHow come such an important exhibit is not on the letter head of the Ministry of \r\nJustice and yet is claimed by plaintiff to have been written and signed by Nana \r\nAkuffo Addo at a time he was the Attorney General.  \r\nPlaintiff attempts an answer by producing Ex ‘P’ where Nana Akuffo Addo states \r\nthat he has a vague recollection of the transaction but confirm the signature on Ex \r\n‘M’ as his signature. Ex ‘P’ written in 2011 when Nana Akuffo Addo was not in \r\npublic office is rather on the letter head of the ‘Office of Nana Akuffo Addo’ whiles \r\nEx ‘M’ when Nana Addo was in public office is not on any letter head. Defendants \r\nper Ex ‘2’ had serious questions with Ex ‘M’ and had recommended that the letter \r\nbe sent for forensic examination for a determination of the authenticity of the \r\n19 | P a g e  \r\nsignature. \r\nEx ‘M’ though in evidence, it has always been the rule that admission of a writing \r\nis one thing and its weight is another. In the face of such a crucial document not \r\nbeing on a letter head, and in the face of Ex ‘2’, the defendants were simply \r\nraising an issue regarding the authenticity of Ex ‘M’. One of the best way to have \r\nresolved this was for the plaintiff to have invited the alleged author of Ex ‘M’ to \r\nbe in court to testify as to the authorship of Ex ‘M’ and answer why such a formal \r\nletter, not being an internal memo, but a letter to the Ministry of Finance, was not \r\non a letter head; but not merely to tender Ex ‘P’. Ex ‘P’ only attest to the signature \r\nbut does not answer why Nana Addo did not write the said Ex ‘M’ on the letter \r\nhead of the Ministry of Justice. There seems to be a substantial question regarding \r\nthe genuiness and authenticity of Ex ‘M’. It contravenes the best evidence rule \r\nenunciated by Lord Hendricks in ONYCHUND v BARKER [1745] 1 AIK 21. \r\nThe reasons why this letter was not a letter head had not been explained and the \r\nalleged author was the best person to have explained. Besides not to talk of it \r\nbeing only a photocopy that was produced.  \r\nA court is always imbued with the power and discretion to exclude a document \r\nthat has wrongly been admitted into evidence if at the time of writing the \r\njudgment it is the opinion of the court that a particular document should not have \r\nbeen admitted into evidence. And authenticity is a precondition precedent to \r\nadmissibility of a writing. See section 136 of the Evidence Act, NRCD 323. See \r\nalso the case of JUXON-SMITH v KLM DUTCH AIRLINES [2005-2006] \r\n20 | P a g e  \r\nSCGLR 438; where the Supreme Court affirmed the decision of the Court of \r\nAppeal to exclude four vital documents admitted by the trial Judge as the \r\nprecondition necessary for their admissibility had been violated, thus sinning \r\nagainst section 136 of NRCD 323.  \r\nRather than rule that Ex ‘M’ was wrongly admitted and exclude same, I restrain \r\nmyself from taking that path. Instead, I would place scant probative value or \r\nweight on Ex ‘M’ due to the questions regarding its authenticity that I have raised \r\nsupra. \r\nAgain, Ex ‘H’ where the Attorney General, Marietta Brew Appiah Oppong \r\nrecommended further payment deserves some comment. Ex ‘H’ was heavily \r\nreliant on Ex ‘M’ that Nana Akuffo Addo had recommended further payment and \r\nalso another letter authored by Dr. Obed Asamoah, Ex ‘W’ that government \r\nadmitted its continuing liability to the Plaintiff. The authenticity of Ex ‘M’ has \r\nbeen ruled by the court not to have been established leading the court to place no \r\nweight on Ex ‘M’. Therefore the basis upon which Marietta Brew Appiah \r\nOppong, the Attorney General came to the conclusion in Ex ‘H’ cannot be correct. \r\nIn fact, there is nowhere in any of the documents authored by Dr. Obed Asamoah, \r\nespecially Ex ‘W’ that plaintiff alludes to; that Dr. Obed Asamoah admitted of \r\nany continuing liability of the government to the plaintiff after payment of \r\n$927.000.00. For in Ex ‘F’ Kwame Pepra, the then Finance Minister in making \r\npayment of an amount of $927.000 stated in emphatic terms at paragraph 7 that: \r\n  \r\n21 | P a g e  \r\n‘I have, therefore, considered and approved the amount of US$927.000 [i.e \r\nUS$944.000 less $17.000 (the equivalent of 11.000 pounds) as \r\nrecommended by the Hon Attorney General, for payment to Great Cape \r\nCompany in full and final settlement of the claim’.  \r\n Dr. Obed Asamoah’s letter that Plaintiff had claimed and still insist is one of the \r\nAttorney General’s admission of liability is Ex ‘W’. Dr. Obed Asamoah \r\nconcludes that letter in the following:  \r\n “As a result of the long delay, the interest on the principal sum \r\nhas accumulated over the period (1981-1997) to approximately \r\nUS$544.000.00. This together with the principal sum of US$400.000.00 \r\ncomes up to US$944.000.00 out of which the legal costs incurred by GNPA \r\ncan be deducted. I therefore invite you to accept liability for the sum of \r\nUS$944.000.00 for GNPA and approve payment of the said sum”.  \r\nWhere in this letter, whether express or implied did Dr. Obed Asamoah admit that \r\nthere was a continuing liability of the government after the payment of the sum \r\nstated in that letter for plaintiff to demand further payments. The contrary is rather \r\nevinced by the reading of Ex ‘W’. What more it destroy the foundation of the \r\nclaim of plaintiff’s attorney that interest on the payment made to its principal was \r\nonly calculated up to 1987. \r\n22 | P a g e   \r\nIndeed, the Attorney General subsequently realized her error and rectified same \r\nin Ex ‘D’ when she advised against any further payments to the plaintiff. Learned \r\ncounsel for plaintiff, Andrew Daniels, Esq contend that the letter of Ex ‘M’ \r\nconstitutes a “contract and claim that an acknowledgement of a debt binds the \r\nperson making it and the successors of that ..”. \r\nWith profound respect, I have demonstrated that Ex ‘M’ which I have strained not \r\nto exclude, was based on information that the interest paid to plaintiff should have \r\nbeen compound interest, which in actual fact was not true. A contract can be \r\nvitiated by a number of factors including mistake. \r\n  \r\nBesides the above, plaintiff claim that the decision to pay the US$927.000.00 was \r\na unilateral decision on the part of the government and not as a result of any \r\nnegotiated settlement of the indebtedness of the 1st defendant.  Plaintiff’s attorney \r\nmakes this assertion as part of the contents of paragraph 6 of his witness \r\nstatement. Learned Principal State Attorney confronted Dr. Tanoh regarding this \r\nclaim of a unilateral payment made by the government of Ghana in the following:  \r\nQ: Are you aware that in 1998, the director of Plaintiff’s company wrote to 2nd \r\ndefendant proposing a settlement of 1.3 million dollars. \r\n  \r\nA: Yes I am aware. I was at the meeting \r\n23 | P a g e   \r\nQ: And that was rejected by the 2nd defendant   \r\nA: Yes, unilaterally  \r\nQ: I suggest to you that the debt owed plaintiff had never been two million dollars  \r\nA: The facts do not support this contention  \r\nQ: I further suggest to you that that the payment of US$927.000.00 was not \r\nunilateral  \r\nA: Not correct  \r\nQ: I further suggest to you that it was in response to the proposal for 1.3 million \r\nUS dollars by the director of Plaintiff’s company.  \r\nA: Not correct. It was unilateral.  \r\nEx ‘V’ emanating from Florence Tchaptchet, a director of plaintiff company on \r\n18th June, 1998 pleading with the Ministry of Finance to review upwards a \r\nsettlement amount of US650.000 reached with plaintiff through one Charles \r\n24 | P a g e  \r\nFordwoh, which the plaintiff director noted, his appointment as an Attorney had \r\nbeen revoked. The author then proposed a settlement of US$1.3 million and noted \r\nthat:  \r\n “Our proposal is for a settlement at 1.3 million US dollars in \r\nfull and final satisfaction of all matters between us. We believe that this is \r\nextremely reasonable and hope that this is acceptable to you”.  \r\nA letter of 23rd October, 1998 from Hon Kwame Peprah, then Minister for Finance \r\nsettled it all as seen in Ex ‘F’.  It makes reference to the negotiated settlement \r\nreached with Charles Fordwoh and how a director of plaintiff arrived in Ghana to \r\nnotify them that Fordwoh’s appointment had been revoked and plaintiff had \r\nclaimed the value of losses to be over US$2.000.000 but eventually putting in a \r\nproposal for an amount of US$1.3 million. Eventually the entitlements of plaintiff \r\nwas reached to be US$927.000.00. \r\nIf in 1998, as per Exhibits ‘V’ the plaintiff itself was claiming US$1.3 million and \r\nonly had US$927.000 how could plaintiff again  turn round and claim  that it \r\nshould have been paid US$2,044,818.45 and based on this falsehood bombard \r\nsubsequent Attorney Generals with letters and petitions to make more payments \r\nto it. If the Attorney – General, Hon. Marietta Brew Appiah Oppong had written \r\nEx ‘H’ and plaintiff insist she should be bound by it, the plaintiff ought to realize \r\nthat statements to the effect that Dr. Obed Asamoah had admitted continuous \r\n25 | P a g e  \r\nliability which was made to her, which in fact was not and is not true or correct, \r\nthe learned Attorney General would not have written Ex ‘H’ as she did. And the \r\nattempt of plaintiff to invoke and rely on estoppel by one’s own conduct under \r\nsection 26 of the NRCD 323 must fail. \r\nCurious enough, the amount plaintiff claim against the government seems to be \r\nshooting up all the time. Ex ‘A’ being the power of attorney granted Dr. Nat Tanoh \r\nto put in claim, the amount that plaintiff claim is owed it is not US1,117,818.45 \r\nbut rather $4,123,320.42 the question is why did plaintiff not claim that amount \r\nof $4,123,320.42 as stated in Ex ‘A’ but rather US$1,117.818.45 or was plaintiff  \r\njust waiting after payment of the $1,117,818.45 and then come back to claim more \r\nmaking the liability of the government of Ghana proceed ad infinitum, which \r\nappears to be to be a clear strategy that plaintiff has adopted to milk the state.  \r\nThe evidence of Nabeela Wahab and more especially DW2, Major (Rtd) M. S. \r\nTara threw more light on the state of affairs of the payments made to plaintiff and \r\nhow it represented final settlement to them. Indeed as Dw1 and Dw3 insists that \r\nif plaintiff had been truthful and made all the correspondence available and not \r\nbe selective in the kind of documents it provided the Attorney General, the advice \r\ngiven in Ex ‘H’ would not have been given. And again, if even my finding on the \r\nlack of authenticity of Ex ‘M’ is wrong and assuming that the said Ex ‘M’ is \r\ngenuine, the same conclusion holds that if the plaintiff had been candid to supply \r\nall the necessary documents for Nana Akuffo Addo to have apprise himself the \r\n26 | P a g e  \r\nconclusion would not have been a proposal for further payments. Plaintiff  cannot \r\nbe made by the court to benefit from his own wrong doing.  \r\nThroughout the cross examination of Plaintiff’s Attorney, he failed to impress the \r\ncourt. He was evasive with the questions posed by the State Attorney and \r\nprevaricated in a number of times in answering simple questions. For instance he \r\nwas evasive in answering how he claimed his lawyer lost plaintiff’s documents \r\nand salvaged some later from GNPA and some from other sources. When pressed \r\nhe could not tell which of the documents were from GNPA and those from other \r\nareas. He failed to state when asked which other sources he was referring to. He \r\ncould not show any document that backed his claim to compound interest and \r\nfailed to demonstrate the bases of a claim to US$2,044,818,46. In fact he was \r\nextremely economical with the truth and I find the material aspects of his witness \r\nas demonstrated supra by the findings made to be extremely unreliable.   \r\nTaking inspiration from the words of Ollenu J. A. (as he then was) in the case of \r\nKYIAFE v WONO [1967] GLR 463 that: \r\n  \r\n‘It must be observed that the question of impressiveness or convincingness \r\nare products of credibility and veracity; a court becomes convinced or \r\nunconvinced, impressed or unimpressed with oral evidence according to \r\nthe opinion it forms of the veracity of witnesses” \r\n27 | P a g e  \r\nThe matters he testified to as the basis of his entitlement to a further claim is not \r\nborne out by the evidence on record.  \r\nOn the whole, the plaintiff who bore the burden of proof at the end of the trial, \r\nhis claim remained unproved and unpersuasive. His claim could not hold water. \r\nWhiles the evidence of the defendants showed how plaintiff had attempted to \r\nhoodwink them to make a further payment.  \r\nIn conclusion, Plaintiff’s claim is dismissed in its entirety. I will exercise my \r\ndiscretion and award cost of Ghc50.000.00 in favour of the defendants.   \r\n(Sgd.) \r\nEric K. Baffour, Esq. \r\nJustice of the High Court \r\nRepresentation: \r\nPlaintiff’s Attorney, Dr. Nat Tanoh Present \r\nAndrew Daniels, Esq. for Plaintiff Present \r\nGrace Oppong, Ms, PSA for Defendants Absent  ', 'ERIC K. BAFFOUR, J', 'Civil', '', 'BPC/11/15 ', '', '', '', '0000-00-00', ''),
(609, 'GREAT CAPE COMPANY LTD   VRS   1. HON ATTORNEY GENERAL 2. THE HON. MINISTER, MIN. OF FINANCE  ', '', '../links/cases/GREAT CAPE v AG.pdf', 'Yes', '', '2016', 'High Court', 'RULING  \r\nAt the last adjourned date of 8/3/16 and in the course of the case management conference when the Plaintiff’s counsel sought to tender seven additional documents which were filed on the 15/2/16, the learned Senior State Attorney objected to the admissibility of those documents. All the seven documents are memoranda consisting principally of legal opinions given by State Attorneys ranging from Chief to Assistant States at the Attorney General’s department regarding the present claim of the plaintiff before the court. The objection of learned counsel to the admissibility of the seven documents is a hydra headed legal objections that needs stating ad seriatim. One learned Senior State Attorney contends that by virtue of section 162 and 165 of the Evidence Act, NRCD 323 the documents being sought to be tendered are not coming from proper custody as they ought to be authenticated from the source which they emanate. Second and a much more difficult one is founded on sections 97, 100, 101 and 102 of the Evidence Act which is to the effect that the seven documents that Plaintiff seeks to tender are all privileged from disclosure on the basis of lawyer client privilege as they were given by State Attorneys as lawyers for the State to the head of the Ministry of Justice and therefore such confidential information ought to be \r\n \r\n2 | P a g e  \r\nprotected to uphold the sanctity of frank and free flow of communication between a lawyer and his client, more so when the Attorney General is the principal legal adviser to the government, its branches and institutions.  \r\nI start first with the first leg of the submission that is rooted under sections 162 and 165 of the Evidence Act. The net effect of the provisions cited by the defendant is to the effect that the seven documents are not original as not coming from proper custody. Section 162 states as follows:  \r\n“A copy of a writing is presumed to be genuine if it purports to be a copy of a writing which is authorized by law to be recorded or filed and has in fact been recorded or filed in an office of a public entity or which is a public record, report, statement or data compilation if— \r\n(a) an original or an original record is in an office of a public entity where items of that nature are regularly kept; and \r\n(b) the copy is certified to be correct by the custodian or other person authorized to make the certification, provided that the certification must be authenticated”.  \r\nThe section establishes a presumption of the genuineness of writings in official custody. This is only a rebuttable presumption and it would only operate where there is no real dispute about the genuineness of the writing. Therefore where there is a dispute as to the genuineness of the writing, the burden of persuasion lies on the opponent of the copy sought to be tendered. However, it must be noted that the presumption arises only if the copy of the writing in question is certified and the certificate authenticated. I do not think that the documents sought to be tendered is within the scope of the documents contemplated by section 162 of the Evidence Act, as writings which is authorized by law to be kept or contemplated by the law could be said to be entries in death, birth registry of the State, or marriage registers kept in the Registrar-General’s department, judgments of courts kept in the court register’s office or government archives. Such documents are required to be authenticated to raise the presumption of its genuiness. It seems to me \r\n \r\n3 | P a g e  \r\nthat the objection does not raise questions regarding the genuiness or the existence of the originals in the custody of the defendant.  \r\nIn respect of section 165 regarding the admission of only original copies of documents sought to be tendered; it must be noted that the subsequent section 166 gives a number of grounds upon which a photocopy may be tendered in lieu of the original. And it states as follows:  \r\n166. A duplicate of a writing is admissible to the same extent as an original of that writing, unless— \r\n(a) a genuine question is raised as to the authenticity of the original or the duplicate; or \r\n(b) in the circumstances it would be unfair to admit the duplicate in lieu of the original. \r\nSo where the original is in the custody or control of the opponent then the tendering of a photocopy of the original has not sinned against the rules on admissibility of evidence. The first ground of objection to the admissibility of the seven documents therefore fails. \r\nNow to the second leg of the objection which is rooted and anchored on the lawyer-client privilege. It is trite that under article 88 of the 1992 Constitution of Ghana, the Attorney General is the principal legal adviser to the government and discharges such duties as are imposed on him by the Constitution or referred to him by the government, who is the client. This makes the Attorney General fall within the scope of the definition of a client under section 100 of the Evidence Act as: \r\na "client" is a person, including a public entity, association or body corporate, who directly or through an authorised representative seeks professional legal services from a lawyer; \r\nSee also the decision of Lord Denning in the case of ALFRED CROMPTON AMUSEMENT MACHINES v CUSTOMS & EXCISE COMMISSIONER (NO 2) [1972] 2 Q.B.102 \r\n \r\n4 | P a g e  \r\nThe scope of the privilege has been circumscribed under section 100 (2) as follows:  \r\n“A client has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication, reasonably related to professional legal services sought by the client, made between the client or a representative of the client and the lawyer or a representative of the lawyer, or between the lawyer and a representative of the lawyer, or between the lawyer or a representative of the lawyer and a lawyer representing another person in a matter of common interest with the client or a representative of such lawyer”. \r\nThis lawyer client privilege discloses a substantive right to keep privileged material confidential not only even in the context of litigation. Privilege extends beyond a mere evidential rule, and has been regarded as a fundamental principle of justice.  At the heart of the privilege is that the client must be sure that what he tells his lawyer in confidence will never be revealed without his consent or whatever advise or opinion the lawyer may proffer will not become a subject of disclosure in the court or any other adjudicatory forum.  Lawyer client privilege is seen not as just a mere ordinary rule of evidence but has been lifted over the years to the pedestal of a fundamental condition on which the administration of justice as a whole rests. See the English case of R v DERBY MAGISTRATE COURT; EX PARTE B [1996] AC 487. The test that is applied and which is relevant point for consideration under our Evidence Act is whether the communication in question was made confidentially for the purpose of legal advice or opinion. All the seven documents are memos that were meant for the attention and consideration of State Attorneys and the Attorney General himself and were not supposed to go beyond the Ministry of Justice. Learned counsel for the Plaintiff claims that section 51 of the Evidence Act should be the dominant principle for consideration. He is gravely mistaken when it comes to a claim of lawyer client privilege. This privilege is absolute, in the sense that once it is \r\n \r\n5 | P a g e  \r\nestablished, it may not be weighed against any other countervailing public interest factor or even how relevant the document is to the suit before the court; the same way when in a criminal case an accused challenges the voluntariness of his statement in a voire dire, which mini trial is not aimed at the truth or otherwise of that statement. See the case of CONLON v CONLONS [1952] 2 ALL 462. The courts have a duty to uphold this hallowed principle of law in order to encourage communication between a lawyer and his client and as long as the communication does not fall within any of the exceptions to the rule as stated under section 101 of the Act, the courts must sustain a claim to any such privilege. I am not unaware that in other common law jurisdictions such as Singapore, where the privileged information gets into the hands of an opponent through fair or foul means the opponent cannot be stopped by a claim of privilege from disclosing it. Ghanaian evidence law does not limit the application of the privilege to that and in that respect our law on lawyer client privilege is wider in scope to the privilege that operates in other jurisdictions. The objection to the admissibility of the seven additional documents filed, all being memoranda meant to be circulated within the Attorney General’s Department are privileged information and as the Attorney General or a person authorized by it has not willingly disclosed that communication to take away that privilege, the claim to that privilege has enough gravitas in law and evidence and same is sustained by the court. The documents will be rejected as inadmissible and marked accordingly. The case management conference continues. \r\n   \r\n          (sgd.) \r\nEric Kyei Baffour, Esq.  Justice of the High Court  \r\n \r\n6 | P a g e  \r\nRepresentations:   \r\nPlaintiff represented by Dr. Nat. Tanoh – present  Defendants – Absent   \r\nDavid Vandyke, Esq., for Plaintiff – present  Grace Oppong, Ms SSA for Defendants – Present    ', 'ERIC K. BAFFOUR, J', 'Civil', '', 'BDC/11/2015', '', '', '', '0000-00-00', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(610, 'GUARANTY TRUST BANK (GH) LTD  VRS   1. CONTINENTAL COMMODITIES TRADING CO. LTD,   2. MARKET DIRECT LTD., 3. DRY FOODS PROCESSING LTD., 4. SUCATRADE LTD., 5. DAVENPORT DEVELOPERS LTD, 6. FINATRADE HOLDINGS SA   ', '', '../links/cases/GUARANTY TRUST BANK v CONTINENTAL COMMODITIES (NO 20.pdf', 'Yes', '', '2016', 'High Court', 'RULING  \r\nThe plaintiff/applicant prays for an order for the appointment of a receiver/manager whose responsibility will be to take charge of the affairs and running of the day to day business of the defendants with the exception of the 5th defendants. According to the applicant the defendants are truly and justly indebted to it as a result of loans the defendants contracted. And as they owe, the assurance of the recovery of its money will be the appointment of John Fiam – Coblavie to take over the management of these companies to realize the monies owed the plaintiff.  \r\nDefendants have resisted the application for a number of reasons, the main one being that there have been receivers appointed by the court differently constituted, in respect of the stocks of 1st, 2nd and 4th defendants. Indeed there is Exhibit CCTC 3 which defendants attach to their affidavit in opposition showing an order from the court in respect of a matter involving Standard Chartered Bank and 1st \r\n \r\n2  \r\ndefendant/respondent.  \r\nCounsel for applicant has argued that notwithstanding the previous orders made by the court differently constituted, a further order by this court will not in any way conflict with the earlier orders made.  \r\nCounsel further relies on sections 239 and 240 of the Companies Act, Act 179. I have carefully considered the sections in Act 179 that learned counsel for applicant referred me to, nonetheless, the court is of the opinion that in view of the orders of the court in which persons in one form or another have been appointed as receivers over the sales of the defendants except perhaps the 5th defendant, I do not find it just and equitable to appoint a receiver/manager to take over the management of these companies. Such an order has a profound potential to bring the receiver/manager appointed into serious conflict with the receivers previously appointed.  \r\nOn that score, the court will decline the application of the plaintiff/applicant.  \r\nI make no order as to cost.   \r\n       (Sgd.) Eric K. Baffour, Esq. Justice of the High Court  \r\nRepresentation:  Plaintiff/Applicant Represented by Chenize Ikeduba -  Present Defendant – Absent  Nana Akyea Addai, Ms. for Kwabena Adu-Kusi, Esq. for Plaintiff – Present  Aaron Gyaban Mensah, Esq for S. Cudjoe, Esq. for Defendant – Present  ', 'ERIC K. BAFFOUR, J', 'Civil', '', 'CM/0232/2016 ', '', '', '', '0000-00-00', ''),
(617, 'KGMTI  VRS   SERVISTAR-MINWAX W. A. LTD', '', 'links/cases/KGMTI v SERVISTAR-MINWAX (RULING).pdf', 'Yes', '', '2016', 'High Court', 'RULING  \r\nThe Plaintiff/Applicant prays the court for leave to issue subpoena ad testificandum directed at the Commissioner of Customs Division of the Ghana Revenue Authority to appear before the court to testify on the status of certain shipping containers which were consigned by the plaintiff to the defendant for delivery to the port of Tema.  \r\nThough the applicant did not indicate during the case management conference and the on pretrial checklist that he intended to call the Commissioner of Customs or its representative to testify. The reason the applicant proffer is that it has become apparent in the course of the trial that the Commissioner appears as a witness in order for the court to be conversant with the full facts of the case and hence the need for the grant of the leave he seeks for the court to be appraised of the fate of the containers which were seized and auctioned by the Customs Division of the Ghana Revenue Authiritt for accumulated demurrage charges.   \r\nDefendant has ardently opposed the application on the grounds that the applicant has not disclosed any special or exceptional circumstances that warrant the grant of the application. To defendant, pleadings have closed, they have all filed their respective witness statements and plaintiff is on the verge of closing its case. That again, plaintiff never indicated during the pretrial conference that plaintiff will call the Commissioner \r\n \r\n2  \r\nof Customs as a witness in the suit. And as it was not indicated by plaintiff, it shows that the witness plaintiff intended to subpoen had not been seen by plaintiff as a material witness.   \r\nIt is stated under Rule 3D of Order 38 of the High Court (Civil procedure Rules) C.I 47 as amended by the Civil procedure (Amendment) Rules, C.I. 87 that:  \r\n“Where a witness statement for use at the trial is not served in respect of an intended witness within the time specified by the Court, the witness shall not give oral evidence unless the Court grants leave”  \r\nThis rule must be just be juxtaposed against that of section 68 of the Evidence Act, NRCD 323 that:  \r\n“The Court may, on its own motion or at the request of a party, call or recall witnesses”  \r\nWhiles Yarney, Esq has urged the court that the Commissioner’s presence may be necessary to unravel the fate of some of the containers if the aim of the court is to do justice the defendant claim that to call the witness will overreach the defendant.  \r\nIt appears to be that whether under the Evidence Act or the C.I 47 which now allows the taking of witness statement, to call a person to testify who has not given a witness statement is at the discretion of the court. To appreciate the factors that a court may have to take into consideration to allow a witness such as the one plaintiff intends to call to testify will depend on a number of factors.  \r\nOne is whether the issue or matter that the intended witness will be testifying to has suddenly emerged during the course of the trial such that no matter how gifted a lawyer with prescience he would not have discerned that the evidence of that witness will be relevant during the case management conference.  \r\nTwo the necessity to balance the need to avoid undue delay whiles not sacrificing the need to ensure that justice is not slaughtered on the altar of speed. For it must always be borne in mind that what gave birth to the C.I 87 was, among others, to avoid delay \r\n \r\n3  \r\nand surprise to an opponent and ensure that lawyers think through the case they are handling so as not to engage in any accident of lottery as to the witnesses it must call during trial. The applicant knew all long from its pleadings that the Customs Division of the Ghana Revenue Authority had auctioned some of the containers, as he alleges, and the necessity that the Commissioner will be a necessary witness for his case to establish the whereabouts of the containers, could not be said to have suddenly down on counsel. If the court were to needlessly allow such applications, it would defeat the very purpose for the enactment of the amendments to the rules of court and take us back to what used to prevail before C.I 87 came into being.   \r\nAgain, it does not make for prudent management of the cases of a court if such applications are allowed making it virtually unpredictable as to when a court will finish a case and the number of witnesses that a party will call. The Pretrial Check list was for a purpose. Though I admit, that the rules of court are only handmaidens but not a mistress, but if this application were to be allowed, I think, it will overreach the defendant and making meaningless the whole purpose of the case management conference.   \r\nI find no compelling grounds canvassed by the applicant to allow this application and accordingly declined same.    \r\nI make no order as to cost.      \r\n          (Sgd.) Eric K. Baffour, Esq. Justice of the High Court     \r\n \r\n4  \r\nRepresentation  \r\nPlaintiff Absent  Defendant Represented by Henry Manley Spain – Present  Nathan  P. Yarney, Esq for Plaintiff/Applicant – Present  Asare Darko, Esq for Defendant/Respondent – Absent    ', 'ERIC K. BAFFOUR,  J', 'Civil', '', 'RPC/230/2014', '', '', '', '0000-00-00', ''),
(618, 'KOMMANDITGESELLSCHAFTMTI,  VERTREIBSGESELLSCHAFT MBH & CO. (KGMTI).     VRS   SERVISTAR MINWAX W.A LTD ', '', 'links/cases/KGMTI.pdf', 'Yes', '', '2016', 'High Court', 'JUDGMENT  \r\nPlaintiff, a company registered under the laws of the Republic of Germany, per the endorsement on its amended writ of 12/02/15 claims the following reliefs: \r\na. Recovery of the value of US$276,465.00 on a bill of exchange dated 13th March, 2014 drawn on the Defendant by the Plaintiff and accepted by the Defendant.   b. Recovery of the remainder of the value of US$443,614.50 (after considering relief A above) being the total value of the consignment of frozen meat supplied on C.I.F terms by the Plaintiff to the Defendant, less the amount of US$100,200.00 realised on the resale of part to a third party.  \r\n2 | P a g e  \r\nc. Interest at the prevailing commercial lending rate from the 15th May, 2014 till the date of final payment on the amounts in Reliefs A and B.  \r\nd. Recovery of the amount of US$40,497.50 being charges incurred in recovering possession of containers marked as MWSU9098805, MNBU9007695, and MWCU6663794.  \r\ne. Recovery of the amount of US$44,000.00 being demurrage charges charged against the Plaintiff to date.  \r\nf. An order directed at the Defendant to be liable for all further charges to be levied against the Plaintiff in respect of the transaction in issue, and  \r\ng. Costs, inclusive of the cost of litigation and lawyer’s commission \r\nPLAINTIFF’S CASE \r\nPlaintiff has provided the basis for his claim in the Statement of Claim that accompanied the amended writ on 12/2/15. Plaintiff avers that between 20th November, 2013 and 1st February, 2014 the Plaintiff and the Defendant contracted for the supply of frozen meat products for the value of US$443,614.50.  Plaintiff claims that it performed its obligation under the contracts and duly delivered the aforementioned goods to the port of Tema-Ghana.   \r\nPlaintiff states that on 13th March, 2013 upon agreement with the Defendant, it drew on the Defendant in favor of the Plaintiff a bill of exchange for the amount of US$276, 465.00 to be payable to the Plaintiff  at Fidelity Bank Limited, Ridge Towers, Accra. The bill of exchange so drawn covered seven (7) out of eleven (11) invoices and was due for payment on the 14th April, 2014.  The Plaintiff says that the defendant accepted the bill of exchange and indicated same by its official \r\n3 | P a g e  \r\nstamp and signature of the authorized officer. \r\nPlaintiff further avers that the defendant and its Bank- Fidelity Bank requested an extension of the due date for a further thirty (30) days. Plaintiff by an email accepted to extend the due date from 14th April, 2014 to 15th May 2014 and requested the Defendant to accept the new due date which it did. Plaintiff says that its bankers, Commerzbank received a message from the Defendant’s bankers of its unwillingness to issue a bank guarantee for the payment of the Bill. \r\nPlaintiff makes the case that the production of a bank guarantee for the honouring of the Bill was a condition precedent to the release of the bills of lading relating to the consignment, notwithstanding that the contract was on C.I.F terms. \r\nPlaintiff concludes that the Defendant defaulted and that in order to avoid substantial losses it tracked and secured possession of the containers labeled MWSU9098805, MNBU9007695, and MWCU6663794 and disposed of them to a third party. Plaintiff further avers that the remaining containers have been seized and auctioned off by the Ghana Customs Authority and it has incurred other charges as a result of the Defendant’s default. \r\nDEFENDANT’S CASE \r\nDefendant has denied the essential averments of the Plaintiff. Defendant says that even though the parties had agreed for Plaintiff to supply the defendant with a consignment of frozen poultry products, the said poultry products were never supplied and/or delivered as alleged by the Plaintiff or at all.  \r\nDefendant further avers that the contract between the parties was on terms being net cash against documents, requiring the defendant to pay for the price of the goods only after sighting and receipt of the appropriate shipping documents. Defendant says that the shipping documents were never delivered by the Plaintiff to it, and that on the 21st March, 2014 the Defendant’s bank advised the Defendant \r\n4 | P a g e  \r\nthat the Plaintiff’s remitting bank requested the return of all the documents covering the consignment. \r\nIt is the case of the Defendant that since the Plaintiff never delivered at any material time the shipping documents on the said poultry products the property in the said poultry never passed to the Defendant and thus it assumed no liability to the Plaintiff. Defendant makes the case that even if it accepted the bill of exchange the Defendant was induced to accept the said bill of exchange by the fraud of the Plaintiff. He then proceeds to provide the particulars of the fraud as follows: \r\ni. Falsely and fraudulently representing to the defendant that plaintiff had shipped a consignment of poultry products for the delivery Defendant, whereas it had not in fact so shipped the said products for delivery to the defendant. ii. Falsely and fraudulently representing to the defendant that plaintiff had given out final and irrevocable instructions to its remitting Bank to deliver documents covering the alleged shipment of poultry products to the defendant, whereas no such irrevocable instructions had been given for the delivery of documents covering the alleged shipment of the said poultry products to the defendant.  iii. Falsely and fraudulently representing to the defendant that there would be no counter instructions regarding delivery of documents covering the alleged shipment of the said poultry products to the defendant, when the plaintiff well knew same to be false. iv. Falsely and fraudulently representing to the defendants that plaintiff had full title in the said consignment of poultry products to pass to the defendant whereas plaintiff well knew to be false. v. The plaintiff made the aforesaid representations to the defendant knowing the same to be false, or reckless nor caring whether the same \r\n5 | P a g e  \r\nwere true or false. \r\nDefendant accordingly denies accepting liability to pay for the amount of US$276,465.00 or any part thereof. Plaintiff joined issues with the Defendant in its reply filed and says that, the Plaintiff had discharges its obligation to deliver the consignments.  \r\nISSUES \r\nAt the close of pleadings the matter was referred for pre-trial settlement. The settlement having broken down the following issues were set down for trial: \r\n1. Whether or not the transaction for the supply of frozen meat products was on C.I.F terms. 2. Whether or not the Plaintiff fulfilled its obligations for the delivery of the shipping documents to the defendants. 3. Whether or not the defendant failed to obtain the shipping documents by reason of its inability to discharge its obligation. 4. Whether or not the Plaintiff fraudulently induced the defendant to accept the bill of exchange. 5. Whether or not the defendant is liable for the value of the consignment. 6. Whether or not the Plaintiff is entitled to its reliefs. 7. Any other issue arising from the pleadings. \r\nEVALUATION OF THE EVIDENCE AND APPLICATION OF THE LAW \r\nPlaintiff testified through its lawful, Mohammed Sidahmed and its subpoed witness from Fidelity Bank, Suzzane Appau. Among the critical documents tended were the contract documents in the form of Ex ‘B’ series, a bill of exchange drawn in the amount of US$276,465,00 Ex ‘D’ being a request for extension for the of payment, Ex ‘H’ being communication from plaintiff to defendant notifying it of the unwillingness of the bankers of defendant to issue a guarantee for the payment that \r\n6 | P a g e  \r\nwas due on the 15th of May, 2014. Ex ‘L’ series is what plaintiff deem to be as a condition precedent for the release of the bill of lading, that is the provision of a bank guarantee and defendant’s failure to do same.  \r\nOn the other hand defendant testified through its director, Henry Manly Spain and seem not to have tendered any document in support of its resistance of the claim of the plaintiff. Did plaintiff who bore the burden of persuasion and the burden of producing evidence prove his case before the court? First is the issue of whether the contract was on CIF terms and if it was its implications for the contract.  \r\nSection 61 of the Sale of Goods Act, Act 137 provides the scope of an international contract whose terms is C.I.F.  It is loosely interpreted to mean that the price of the goods includes cost, insurance and freight. The essential nature of a C.I.F contract is that the seller does not undertake that the goods shall arrive but agrees that one he will procure and tender to the buyer the conforming shipping documents. Two, he will transfer the property in the goods to the buyer at the due time for such transfer, provided that the goods are in existence. In this respect C.I.F contracts have been referred to as sale of documents relating to the goods and not sale of goods.  \r\nSo in the case of MANBRE SACCHARINE V. CORN PRODUCTS LTD [1919] 1 K.B. 198; Corn Products agreed to sell corn syrup and starch to Manbre Saccharine on CIF terms London. Goods answering the contract were accordingly shipped to the buyers. The ship was sunk by a torpedo mine on 12/3/1917. The sellers tendered the shipping documents relating to the goods on 14/3/1917 but the buyers refused to take them up and pay the price. It was held that the seller may validly tender the documents even though he knows the ship to be lost, that the buyers were bound to do so, and that their refusal to pay amounted to a breach.  \r\nMcCardie J. poses the question whether the seller can tender documents on goods that are lost.  \r\n7 | P a g e  \r\n“I conceive that the essential feature of an ordinary contract of sale of goods rests in the fact that performance of the bargain is to be fulfilled by the delivery of documents and not by the actual physical delivery of the goods by the vendor’’. \r\nIn the Ghanaian case of ZAKOUR v. PILLSBURY MILLS, INC [1961] GLR 401; Supreme Court held that the essential feature of a CIF contract is the delivery of documents and not by actual delivery of the goods.  Among the principal duties imposed by law as spelt out under section 61 of Act 137 on the  seller in a CIF contract are the following: for the seller to ship the goods under section 61(a). The seller ships the goods or buys them afloat and appropriates it to the contract. In C.I.F contract, there is no obligation that the seller delivers the goods personally to the buyer. The seller performs his obligations if he is able to furnish the buyer with the requisite conforming shipping documents. In effect, the seller’s duty to deliver the goods is met when the documents are delivered even if the goods are lost. The second principal feature of a C.I.F contract are that the cost of shipment and insurance are borne by the seller under section 61(b). The seller also at his own expense bears all the cost of the freight and an insurance policy necessary for that type of the goods in question.  \r\nThe third and most important aspect of a CIF contract is for the seller to deliver or tender the shipping documents to the buyer under section 61(c) and 64 of Act 137. This may be a seller’s invoice for the price, a bill of lading and insurance policy. These provides an assurance to the buyer that the goods will arrive and if destroyed or damaged there will be insurance for him. The bill of lading and the insurance policy assures the buyer that the goods shall arrive and even if they do not arrive because they are destroyed or damaged, it assures the buyer that he can claim against the carrier or the insurer as the case may be. If the documents are not in order, the buyer may reject them. However the seller may make fresh and conforming tender if there is time. \r\n8 | P a g e  \r\nThe Supreme Court has held in ROBIN HOOD MILLS LTD AND ANOTHER v FARAH [1963] 1GLR 149 that,  \r\n“In a c.i.f. contract where the seller completely satisfies his part of the contract, that is to say, as soon as  he (i) ships goods of the description contained in the contract, (ii) procures a contract of affreightment which is  reasonable and usual in the trade and procures a bill of lading evidencing the contract of affreightment, (iii) covers the goods with a policy of insurance upon terms current in the particular trade, and (iv) tenders all the relevant documents to the buyer, the incident to risk passes to the buyer upon shipment of the goods.  Thereafter the buyer will be under an obligation to pay even if the goods get lost in transit, or become damaged through any intervening circumstances.” \r\nThe parties may prescribe what specific documents should be tendered by the seller to the buyer and where the contract is silent on this, it would be sufficient for the seller to tender to the buyer the bill of lading, policy of insurance and invoice.  \r\nThe contract may also expressly state that the C.I.F contract is on ‘cash against documents” basis or may be silent on it. This is not fatal to the essential nature of the contract because House of Lords has held in E CLEMENS HORST COMPANY V BIDDEL BROTHERS [1912] AC that under a contract for the sale of goods on C.I.F terms the seller fulfils his obligations by shipping the goods and tendering to the buyer the bill of lading and insurance policy, and the buyer has to pay the agreed price in exchange for those documents, whether the contract does or does not in terms provide that the payment shall be made “against documents”. \r\nFrom the evidence available especially Ex B series are all captioned sales confirmation. On the face of all the three documents making up Ex ‘B’  series delivery terms is stated to be C.I.F. I find and hold that the contract \r\n9 | P a g e  \r\nentered into between the parties was on C.I.F terms and retained the essential features of C.I.F as enumerated supra. \r\nBut did the plaintiff fulfil its obligations under such a C.I.F contract that I have found existed between the parties? The general rule is that performance of a contract must be precise and exact. That is a party performing an obligation under a contract must perform that obligation exactly within the time frame set by the contract and exactly to the standard required by the contract. This rule was applied in RE MOORE & CO AND LANDAUER &CO [1921] 2 KB 519. \r\nThe import for the instant case is that once the Plaintiff as seller under a contract for the sale of goods under C.I.F terms has undertaken to procure shipment of the goods agreed to be sold to the agreed port, to procure and tender to the buyer proper shipping documents covering the goods, the Plaintiff is contractually bound to ship the goods and ensure that the buyer actually receives the proper documents. The parties may agree in the contract that the tender of the documents shall be made to the buyer in person or to an agent or other person on behalf of the buyer.  \r\nWhere under the contract tender of the documents is to be made to the buyer in person, tender of the documents by the seller to any other person other than the buyer is non-performance on the part of the seller because it will amount to a departure from the terms of the contract. Where however, the parties have agreed that document may be tendered to an agent of the buyer or other person on behalf of the buyer, then tender of the documents to such persons is good delivery to the buyer.  \r\nThe question then is this – is ascertaining whether or not a party to a contract has performed his contractual obligation a question of fact or a question of law.  Chitty on Contracts, has opined that when an issue arises as to whether performance is sufficient, the court must first interpret the contract in order to ascertain the nature of the obligation (which is a question of law); the next question is to see whether the \r\n10 | P a g e  \r\nactual performance measures up to that obligation, which is a question of mixed fact and law. \r\nFrom the evidence plaintiff contends that he did not deliver the shipping documents directly to the defendant but rather to the defendant’s bankers being Fidelity Bank Ltd. Ridge Towers. And that defendant had agreed that it would cause its bank to provide in favour of the plaintiff a guarantee for the payment of the amount stated on the bill of exchange before the shipping documents were handed over to the defendant. Indeed in Ex ‘D’ defendant’s bankers write that their client Servistar has accepted the draft with maturity date on 14th April, 2014. And the agent of defendant makes a request to the plaintiff in terms of the following: \r\n“…because the bank is still in possession of the documents and its credit committee is yet to approve the guarantee which is still in circulation. It will be suitable however for MTI to send via swift an extension of payment from 14th April to a further 30 days”. \r\nHere defendant through its agent makes an admission that they were in possession of the documents and what was left was for the provision of the guarantee. In Ex ‘F’ Ivy Manly-Spain is requested to proceed to accept and pick the documents at the bank as soon as possible in order to afford defendant the chance to clear the containers in order to avoid public auction of the containers. Defendant’s representative under cross examination admitted that it nominated Fidelity Bank to receive the documents on its behalf in terms of the following: \r\n“Q: In respect of the transaction between the plaintiff and the defendant, as claimed from paragraph 3 of your witness statement, you do not deny it, is it correct? \r\nA: I have no denial. \r\nQ: How long has the defendant had a relationship with Fidelity Bank. \r\nA: It is about four or five years. I cannot be specific. \r\n11 | P a g e  \r\nQ: But at the time of the commencement of these transactions, that is as at August, 2013, your bankers were Fidelity Bank. \r\nA: That is Correct. \r\nQ: It will stand to reason then that it is the defendant that nominated and instructed Fidelity Bank in respect of this transaction to receive shipping documents on his behalf, is that not so? \r\nA: Yes My Lord” \r\nFrom the above I will accordingly find as a fact and hold that plaintiff performed his duties in compliance with a contract governed by CIF terms by delivering the shipping documents to the defendant who had nominated the Fidelity Bank as its bankers. And as defendant nominated an agent, being Fidelity Bank, with Plaintiff having delivered the shipping documents to the said agent and per the instructions of the defendant, plaintiff can be deemed to have fulfilled its part of the obligations. \r\nCounsel for defendant in his written address contends that plaintiff failed to include insurance policy in the name of the defendant as required by section 61(b) of Act 137. As far as the evidence on record demonstrates, the contract was not fulfilled not because of non-provision of insurance but rather the failure of defendant to raise the bank guarantee with his bankers and any claim of non-provision of insurance policy is an afterthought and the attempt of defendant to raise non-provision of insurance by plaintiff as a material breach by plaintiff will be rejected by the court. \r\nDid the defendant fail to obtain the shipping documents because of its inability to discharge its obligations?  \r\nThe nature of a party’s contractual obligation is deducible from a true and proper construction of the terms of the contract executed by the parties. Where the existing terms of the parties are subsequently altered the alteration operates to discharge the parties from their obligations under the former terms, and the new terms \r\n12 | P a g e  \r\nsuperimpose the previous terms of the contract. The parties then assume obligations under the new terms of the contract as the alteration of the terms evidence the parties’ intention to introduce new terms in place of the old. \r\nConsequently, the question whether or not a party has performed or failed to perform its obligations under the new terms of the contract is answered by assessing if the actual acts carried out measure up to that party’s obligation under the contract.   \r\nPlaintiff had claimed through its attorney that the bill of exchange which is Ex ‘B’ series was sent and accepted by the defendant as it was endorsed by its appointed representative, with a request for extension  of the due date. To plaintiff there was a further plea emanating from defendant through Ivy Manly Spain, one of the directors of defendant. Defendant’s representative, Henry Manly-Spain admitted that Ivy Manly-Spain is a wife and one of the directors of the company and that plaintiff had given a verbal instructions to them to provide a guarantee. This is what transpired in court: \r\n“Q: This email shown in exhibit L2 is an email from Ivy Manly-Spain who you  have also identified as your wife and the director of the defendant. \r\nA: This is right. The request of this Bank guarantee was a verbal agreement between the supplier who offered that we should indicate to the Bank that we will like to have a guarantee to support the goods … all the shipping that are shipped to us, the documents are released to us based on the relationship that we do have with them, we clear the goods and we pay” \r\nQ: You want this court to believe that an international sale of contract on CIF terms, an international supplier will supply your company with goods and hand over shipping documents … without any form of security for payment for the goods, is that what you are telling this court. \r\n13 | P a g e  \r\nA: Yes it is done, the security that you mentioned, to secure or to have security that is why the documents go through the Bank” \r\nAs defendant was making an allegation of a verbal agreement, the onus was on him to prove that claim. It is trite learning regarding parol evidence rule that generally once parties to an agreement have reduced their contract into a written form, the parties will be debarred from adducing extrinsic evidence to contradict what they have written. The exceptions to the parol evidence rule is where the written document was not intended to contain the whole of the agreement between the parties as seen in the case of ALLEN v PINK [1838] 4 M&W 140; two a circumstance where oral evidence may be adduced to prove the existence of a custom as it was in the case of GILLESPIE BROTHERS v CHENEY EGGAR & CO [1896] 2 QBD 59; three where there is evidence to show that a contract is invalid due to misrepresentation, mistake, fraud or non est factum as it was in the case of CAMPBELL DISCOUNT v GALL [1961] QBD 431and four where a party is calling for rectification of the written document as in the case of MANN v NUNN [1874] 30 LT 526.  \r\nDefendant could not prove any of the exceptions before the court. On the other hand Ex L2 being an email from Ivy Manly Spain notes as follows: \r\n“We would like to inform you that due to the current economic situation in Ghana, our company can no longer receive documents on sight basis. We would appreciate if you can release these documents to us on a 30 days period bank to bank guarantee. This means our bank is guaranteeing to pay you on our behalf by 30th day”. \r\nThis Ex ‘L2’, I find to be a communication from defendant that seems to vary the original plan agreed between them that payment would be made upon siting of the bill of exchange to one where the documents would be released 30 days with the \r\n14 | P a g e  \r\nprovision of a bank guarantee. Did the bankers of defendant do that? The answer is no as found in Ex ‘G’ where Fidelity Bank informs plaintiff that: \r\n“Please be advised that we are unable to guarantee for the drawee USD 276,465.00 maturing on the 15- May, 2014”. \r\nIt is this Ex ‘G’ that ignited Ex ‘J’ from plaintiff that it had not received payments and therefore it was terminating the contract. Suzzane Appau, Pw1 from Fidelity bank in her evidence also confirmed that credit approval for defendant did not go through at Fidelity bank and identified Ex ‘G’ as emanating from them. I accordingly find as a fact that the obligation imposed by law on a buyer under CIF terms to pay for the goods upon siting of the shipping documents were not complied with by defendant as plaintiff had released the documents to defendant’s own bankers. \r\nDefendant has alleged fraud and in paragraph 13 of its statement of defence and particularized the fraud to encompass plaintiff representing that it had shipped a consignment of poultry products when in actual fact it had not done so, a representation that plaintiff’s bank had given irrevocable instructions to its bankers to deliver shipping document when no such documents or instructions had been given, falsely and fraudulently representing that plaintiff had full title in the consignment of poultry products to pass to defendant when this was actually not the case etc. Allegation of fraud is not treated lightly by the courts and a great and onerous responsibility is thrust on the shoulders of a party that runs to the court with a cry of fraud.  \r\nFor in the case of REDDAWAY v BOWHAM [1896] AC 199 @ 221 Lord Macnaughten noted on fraud as follows and which was quoted with approval in the case of FOFIE v ZANYO [1992] 2 GLR 475 that:  \r\n15 | P a g e  \r\n “fraud is infinite in variety; sometimes it is audacious and unblushing; sometimes it pays a sort of homage to virtue, and then it is modest and retiring; it would be modesty itself if it could only afford it. But fraud is fraud all the same, and it is fraud and not the manner of it, which calls for the interposition of the court”  \r\nDefendant on the issue of fraud bears the burden of proof to show that the conduct of plaintiff in the transaction towards him as he had particularized in paragraph 13 of its statement of defence acted dishonestly as fraud is dishonesty in the description of Dr. Twum JSC in the case of BROWN v QUARSHIGAH [20032004] 2 SCGLR 930 @ 946 where the Judge stated as follows:  \r\n‘at common law a charge of fraud is such a terrible thing to bring against a man that it cannot  be maintained in any court unless it is shown that he had a wicked mind… in short fraud is dishonesty’  \r\nThe standard of proof of fraud even in a civil case is one of proof beyond reasonable doubt. Section 13 (1) of the Evidence Act states that:  \r\n‘In any 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’.  \r\nDid defendant lead any evidence of fraud in line with the notice of particulars he gave? Defendant’s representative, Henry Manly Spain states in paragraph 11 of his witness statement that he was induced to accept the bill of exchange. I have combed the entire evidence adduced at the trial and I find nothing in support of this bare assertion of having been induced to accept the bill of exchange. On the contrary the \r\n16 | P a g e  \r\nevidence on record shows that the defendant nominated its own Bank to receive the shipping documents and as the guarantee could not be provided the contract had to be abrogated. I find and hold that the claim and allegation of fraud made by defendant was unproved even on a balance of probabilities let alone the criminal standard of prove beyond reasonable doubt. \r\nIt appears that the defendant failed to obtain the shipping documents because of its inability to raise the bank guarantee necessary for him to obtain the shipping documents to enable him clear the containers from the Tema harbour and I find defendant liable for the value of the US$276,465,00 as shown on the face of the bill of the bill of exchange drawn on the defendant by the plaintiff and accepted by the defendant through its authorised agent, the Fidelity Bank. \r\nI think also that plaintiff is entitled to interest on this amount of USD$276,465.00 from the date of 15th of May, 2014 when it became due till date of final payment at the commercial bank rate. \r\nPlaintiff also seeks in relief D and E the recovery of amounts of US$40.497.50 and US$44,000.00 being the cost incurred in recovering possession of the containers and demurrage charges paid respectively. Did the plaintiff at the trial prove this claim of monies spent in recovering possession of containers and was there any evidence on record that demonstrates that plaintiff paid monies in demurrage charges because of the failure of the defendant to obtain the shipping papers to clear the containers. \r\nPlaintiff in his attempt to claim its entitlement to an amount for the value of all the eleven containers totalling US$443,614.50 (after considering relief A) less the three it sold in Lubumbashi, Democratic Republic of Congo for the price of US$100,200.00. Plaintiff’s attorney in his witness statement claimed that the eleven containers were all auctioned by Ghana Customs Authority and managed to retrieve only three of the containers by selling them to mitigate its losses. Ex ‘K’ series was \r\n17 | P a g e  \r\ntendered by plaintiff where the three containers sold in Democratic Republic of Congo with each fetching an amount of 33.400.00 Euros. The total value, therefore, will come to US$100200.00. Plaintiff claims that less the amount of US100.200.00 the total value of the eleven containers and that of Relief A being US$443,614.50 should be borne by the defendant. \r\nThe law is that a party is required to take steps that are reasonable to mitigate losses. Damages awarded are subject to the rule that an innocent party to a contract is under obligation to take reasonable steps to mitigate losses. So in the case of SOCIETE GENERAL DE COMPENSATION v ACKERMAN [1972] 1 GLR 413@432 the Court of Appeal per Anin JA noted as follows: \r\n“what steps a plaintiff in an action for breach of contract should take towards mitigating the damages is a question of fact and not of law…” \r\nI hold and find that the value of the containers being US$443,614.50 which only three were retrieved and sold as seen in Ex ‘K’ to the tune of US$100,200.00, and after the payment of the value of the bill of exchange raised to the tune of US$ 276.465,00 the balance still outstanding on the amount of US$444,614.50 is recoverable by the plaintiff from the defendant and I so find. \r\nNot only that but also plaintiff seeks to recover the cost of demurrage which he attributes to have occurred because of the conduct of defendant that resulted into the containers attracting the demurrage charges. Ex ‘M’ series. Ex ‘M’ has a face value of US$13,640.00, there is Ex ‘M2’ with the value of US$8,682.50, I can also see Ex ‘M4’ with a demurrage charge of US$3,000.00. There is also Ex ‘M3’. It seems to me to be reasonable that plaintiff be made to recover for the cost of these expenses it was made to pay and I so grant it. \r\nInterest that plaintiff also seeks in respect of reliefs A and B are reasonable and l grant same. In the exercise of the discretion of the court I will award cost assessed at 8% of the value of the claim in favour of the Plaintiff. \r\n18 | P a g e     \r\n(Sgd.) Eric K. Baffour, Esq., Justice of the High Court   \r\nRepresentation:   \r\nPlaintiff – absent  Defendant Represented by Henry Manly Spain – present  Nathan Parker Yarney, Esq. for Plaintiff – present Asare Darko, Esq. for Defendant – absent  ', 'ERIC K. BAFFOUR,  J', 'Civil', '', 'RPC/230/14', '', '', '', '0000-00-00', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(612, 'HAWKRAD JOD CONTRACTS LTD   VRS   CAITEC DELTA LTD', '', '../links/cases/HAWKRAD JOD v CAITEC DELTA.pdf', 'Yes', '', '2016', 'High Court', 'JUDGMENT  \r\nPlaintiff claims per the endorsement on its writ of summons the following reliefs:  \r\n1. Declaration that the Defendant is in breach of the warranty covering the ten shackman trucks purchased by the Plaintiff from the defendant to execute a haulage contract with Adamus Resources Ltd.  \r\n2. An order for the recovery of Gh¢1,877,289.75 being the total loss of income for the period February to June, 2014 as a result of the breakdown of the said trucks.  \r\n3. Cost  \r\nPLAINTIFF’S CASE Plaintiff has provided the basis for his claim in the statement of claim that accompanied the writ. Plaintiff avers that in the year November, 2013, it won a near pit haulage contract to undertake for Adamus Resource a haulage of its ore at Adamus Nzema site in the Western Region. It accordingly approached Cal Bank for a loan to enable it purchase trucks to undertake the haulage contract. Cal Bank accordingly granted it two banking facility loans all totaling an amount of $US845.000.000. \r\n \r\n2  \r\nPlaintiff upon the release of an amount of $US422.500.00 to defendant by Cal Bank procured the ten trucks to start its operations. Plaintiff claim that it took delivery of the ten trucks in January, 2014 to start the operation of the haulage of the ore with an assurance by defendant that the trucks were fit for the purpose which they were purchased for and with a one year warranty or a 30.000 km whichever was earlier in time. According to Plaintiff it realized a few months into the operation of the trucks that the trucks purchased proved to be unfit for the purpose for which they were bought. Plaintiff started experiencing break down of the trucks just two months of being used and this compelled it to resort to alternative means of the haulage of the ore  and in February alone the trucks were down for 65 days and the use of alternative means of haulage cost it Ghc166.272.75. Further breakdown for the subsequent months were provided as follows: March – 32 days with the cost of alternative hiring of trucks at Ghc77.112.00 April – 98 days with the cost of alternative trucks at Ghc259.308.00 May – cost of Ghc375.732.00  June -  cost of Ghc463.050.00. July - cost of Ghc535,819.75 and that all these were the aggregate cost of hiring alternate trucks to execute the contract.  \r\nPlaintiff further claim that two of the trucks were involved in accident due to break failures which then compelled Adamus Resources Ltd. to warn Plaintiff that the trucks being used for the work did not meet mining safety requirements and needed to be withdrawn. It claims that it is entitled to be reimbursed for the losses incurred as a result of the breakdown of the trucks. Besides, it had been notified of the non-renewal of its contract with Adamus Resources Ltd. because of the poor performance of the trucks and this has occasioned serious financial hardship to the plaintiff. And hence the reliefs he seeks as per the endorsement on the writ of summons.  \r\nDEFENDANT’S CASE Defendant has denied the essential averments that form the basis of the claim of the Plaintiff contending that the trucks were fit for the purpose for which they were purchased for. To defendant it was the agents, workers and drivers of Plaintiff who were responsible for the malfunctioning of the trucks delivered to them. And that whatever accident that the trucks were involved in was purely due to the incompetent \r\n \r\n3  \r\nand illiterate drivers and workers of the Plaintiff coupled with their negligence. Defendant then proceeded to claim that most of the drivers that were trained by  defendant to handle the trucks were dismissed by the Plaintiff and replaced with incompetent ones. Defendant refuted the claim of the Plaintiff that its contract with Adamus Resources Ltd. was not renewed due to the poor performance of the trucks but rather its contract had run its full course for six months and had come to an end. Defendant particularized the negligence of Plaintiff’s workers as follows: the nonservice of the trucks by Plaintiff, the technical advice given by defendant’s representative on site was ignored, the non-lubrication of the vehicles, the continuous running of the engines of the vehicles without adequate oil, the non-maintenance of the hydraulic systems of the trucks, the trucks driven over rocky and bad terrains etc.  \r\nPlaintiff in its reply joined issues with the defendant. As the pretrial conference failed to resolve the issues between the parties, the following nine issues were agreed and settled upon at the close of the pretrial conference and they were:  \r\n1. Whether or not defendant has breached the warranty covering the trucks acquired from her by Plaintiff. 2. Whether or not the losses incurred by plaintiff were the direct result of the frequent breakdowns of the trucks supplied by defendant. 3. Whether or not the non-renewal of Plaintiff’s contract with Adamus Resources Ltd was a result of the non-performance of the trucks supplied by defendant. 4. Whether or not the frequent breakdowns were due to the terrain in which the trucks were used, and the overloading of the trucks by the Plaintiff. 5. Whether or not the Plaintiff sacked the qualified drivers engaged originally by her and replaced them with illiterate drivers. 6. Whether or not the vehicles acquired by Plaintiff from defendant were fit for the purpose for which they were acquired. 7. Whether or not Plaintiff is entitled to her claim for damages for breach of contract. 8. Whether or not Plaintiff is entitled to her claim. 9. Any other issues arising from pleadings.  \r\nANALYSIS OF THE EVIDENCE AND APPLICATION OF THE LAW: \r\n \r\n4   \r\nThe plaintiff testified through its representative, Augustine Kwabena Kessie and its Pw1, the CEO, – Nana Antwi Darkwah in line with the pleadings of the plaintiff company. These two witnesses put in a number of exhibits during the Case management conference and the supplementary Case Management Conference. Key among these are Ex ‘A’ being the facility agreement for the procurement of the loan for the purchase of the shackman trucks; Ex ‘B’ that contains the warranty provision which is in contention here; email correspondence and accident report as Ex ‘C’; then a series of invoices for from plaintiff as Exhibits D series, E to J.  \r\nThe defendant on the other hand testified through its Sales and Credit Manager Patrick Baidoo and the mechanic that was posted to the plaintiff’s site, Jewel Larnyor. Between them were tendered at the Case Management Conference the principal exhibits of Ex ‘1’ series consisting of photos of the trucks at various stages of breakdown; Ex ‘2’ being a report allegedly filed by Dw1 of his impression whiles at the site of the plaintiff; Exhibit ‘3’ being invoices of charges levelled by defendant for services conducted on the trucks.  \r\nThe nine or dozen issues filed by the parties could conveniently be subsumed in two or three issues by the court for determination. And that is whether plaintiff proved any latent defects in the operation of the ten shackman trucks so as to have breached the warranties of Ex ‘B’ or implied ones in a contract for the sale of goods; two whether plaintiff proved losses and if they can be said to directly flow as a result of any breach of contract for the sale of goods by the defendant. I find issues 1, 4, 5 and 6 fall under the first broad issue on the breach of an alleged warranty whiles issues 2, 3, 7 and 8 will fall under the loss recovery and the sub issues that goes with it.  \r\nThe purchase of ten shackman trucks by the plaintiff from the defendant was for the specific purpose of being used by plaintiff to do a near pit haulage of ore for the Adamus Resource Ltd at its mine at Teleko Bokazo, Nzema. The ore which contained gold was to be washed to extract the gold mineral from the ore. Though the trucks started work on the 22nd of January, 2014 there seems to be reports of defects as early as February, 2014, less than a month after the start of work by the trucks. Augustine Kessie list some of the defects experienced as follows:  \r\n \r\n5  \r\n “as early as 15th February, 2014 breakdowns had occurred, and this continued notwithstanding the fact that at plaintiff’s request, defendant sent her own mechanic to the site… this arrangement did not stop the breakdowns which varied from brake system functionality; air generation systems, alternator malfunction, tipping difficulties, toll gate locker defects, clutch etc and all these were not attributable to a particular truck but several or almost all of them”.  \r\nCounsel for defendant claim that the plaintiff did not lead evidence to prove any latent defect for which implied warranty theory should be invoked. But going through the evidence, especially Ex “D” series, “E” series, “F” series, “H”, “F” etc it shows that as at March, 2014 the plaintiff was complaining of breakdown of the trucks with the hiring of alternative trucks. The cost involved were itemized and sent to the defendant. It continued even in June and July, 2014 when the contract was ending. The itemized billing sent just a couple of months into the purchase of the trucks and when barely half of the purchase price had been paid cannot be said to have been made ante litem motam.  I find as a fact that cogent evidence was lead going through the documents tendered by plaintiff as exhibits as proof of the defects that plaintiff was experiencing.  It is also the further claim of defendant that at the time of the purchase of the trucks plaintiff had the opportunity to observe the trucks with a mechanic of their choice and having done so, the defendant cannot be liable for any latent defect that may be found with the trucks.   \r\nIs that the law?  \r\nFirst virtually all the complaints of the plaintiff are latent defects not visible to the ocular eye upon inspection of the vehicles at the time of purchase. How would one determine the effective functionality of a faulty break pad upon inspection of a brand new vehicle. It is necessary that I spend time to address this issue regarding the terms of the contract. For it is what defines the scope and extent of the obligations of the parties to the contract. For where an item forms part of the contract it is usually said to be a term of a contract. The term could come into being in a number of ways. One by express agreement of the parties as reflected in the contract, where they specifically state what should animate their dealings. It used to be the law that breach of a term entitled the innocent party to greater damages than breach of warranty. It is not the nomenclature that matters any more than the essence of what has been breached.  \r\n \r\n6  \r\nHere the parties seems by Ex ‘B’ agreed on a warranty whereby defendant did undertake by guaranteeing the smooth running of the vehicles for one year or 30.000 km whichever is earliest. But even if there was no such express condition, it is trite that the other ways in which terms of a contract could be seen are terms implied by common law or statute law. In Ghana there are implied terms in respect of the sale of goods for both the seller and the buyer. And this contract was a contract for the sale of goods within section 1 of the Sale of Goods Act, Act 137.  \r\nSpecifically section 13 on implied condition of fitness and quality of the goods sold, which both counsel referred to states as follows:  \r\nQuality and Fitness of Goods. (1) Subject to the provisions of this Act and any other enactment there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale except as follows— (a) There is an implied condition that the goods are free from defects which are not declared or known to the buyer before or at the time when the contract is made: Provided that there is no such implied condition— (i) where the buyer has examined the goods, in respect of defects which should have been revealed by the examination; (ii) in the case of a sale by sample, in respect of defects which could have been discovered by a reasonable examination of the sample; (iii) where the goods are not sold by the seller in the ordinary course of his business, in respect of defects of which the seller was not, and could not reasonably have been aware. (b) Where the goods are of a description which are supplied by the seller in the course of his business and the buyer expressly or by implication makes known the purpose for which the goods are required there is an implied condition that the goods are reasonably fit for that purpose.   \r\nCounsel for defendant explains the provision supra  by concluding that once at the \r\n \r\n7  \r\ntime of the sales plaintiff had the opportunity and did admit in court that they examined the vehicles at the show room, their claim of warranty must totally fail. With profound respect to the views of learned counsel for defendant regarding section 13 of Act 137, that is incorrect. What the provisions mean is that Ghana’s sale of Goods Act, has moved away from the common law position of caveat emptor where the buyer must beware to one of caveat glovoson, where the seller must beware of the goods he is selling. The Act places onerous responsibility on the shoulders of sellers of both brand new and second goods as being liable for defects in them. The exceptions are, one, where the seller has declared the defects in the goods and nonetheless proceed to go ahead with the transaction, second where the buyer has examined the goods to satisfy himself and has been aware of defects that are manifest on the face of the goods. How would physical examination of a vehicle at a showroom expose a tipping defect in a truck, or a breaking defect, or a non-durable rim that can easily crack or a tyre that is susceptible to bursting when exposed to our rugged and rough roads? So by section 13 (1) (a), it is implied that the goods are free from defects which are not declared or made known to the buyer before or at the time of the contract. Thus where the defect is not visible or declared to the buyer the seller is bound by the defect and the buyer may reject same. The exceptions are what I have stated. Julius Ansah JSC beautifully explains what section 13 of Act 137 means eloquently in the case of GEORGE SARPONG v SILVER STAR Suit No J4/43/2013 dated 15th January, 2014 in the following:   \r\n“Ghana law imposes a heavier responsibility on sellers of goods than is the case under English law. Moreover, the duty imposed by the Ghana law is the same for sellers of both new goods and second-hand goods. In short, the Ghana law approaches the topic of Sale of Goods with a Caveat Venditor gloveson rather than the Caveat Emptor approach of the English common law”. \r\n \r\n8   \r\nA similar conclusion had earlier been reached by the same Supreme Court in the case of CONTINENTAL PLASTICS ENGINEERING CO. LTD v IMC INDUSTRIES – TECHNIK GMBH [2009] SCGLR 298 where the court speaking through Wood, CJ, noted the following: \r\nThe legal position can therefore be summed up as follows: a seller of either first or second hand goods is by an implied condition, liable for all defects in them. Based on what we believe is pure common sense the seller is however not liable for defects which he fully disclose or declares to the buyer at the time of the contract of sale. When the buyer has examined the goods the seller cannot be held liable for defects which ought to have been discovered on examination, as for example, patent defects. It does follows that if there were defects particularly latent defects which are not discoverable on examination, and which are not disclosed to the buyer before the conclusion of the contract, the seller cannot escape liability for the breach of an essential condition of the contract”  \r\nI find that per the agreement entered between the parties both as fact and law and on the express and implied terms of the contract, defendant was liable for all the defects that were reported by the plaintiff at the mining site. The story of the non-servicing of the vehicles, non-maintenance, plaintiff not washing the vehicles, not purchasing spare parts from defendant etc seems to miss the mark. Why would there be the need to change parts on a less than two month brand new car, and what has washing of a vehicle has to do with its breaking system or its failure to discharge goods?  \r\n A number of claims were made by the defendants in their attempt to parry the charge \r\n \r\n9  \r\nof defective goods sold to the plaintiff. First both Patrick Baidoo and Jewel Larnyor claim that the drivers used by the plaintiff were dismissed and replaced with inexperienced ones who could not even negotiate curves leading to rampant accident. The following exchanges came out of counsel for plaintiff’s confrontation with defendant’s representative:  \r\n“Q: Mr. Baidoo, in your witness statement you have made a claim that the initial drivers who were hired by the plaintiff to handle the trucks were trained by your company, is that correct  \r\nA: Yes that is correct  \r\nQ: Did you say they were given orientation  \r\nA: I said yes we gave them orientation  \r\nQ: Orientation will not be the same as training, you agree with me  \r\nA: Yes my Lord but because they are already good drivers we show them the operation of the vehicle that is why I said orientation  \r\nQ: Who recruited these drivers  \r\nA: The Plaintiff brought the ten drivers for the vehicles, so I will say it is the plaintiff who recruited them …  \r\nQ: Over what period did you give them this orientation?  \r\nA: The same day they were picking the trucks  \r\nQ: So it was one day  \r\n \r\n10  \r\nA: Yes My Lord  \r\nQ: I am suggesting to you that your claim that you trained the drivers on the use of the Shackman trucks cannot be true  \r\nA: Yes My Lord. Why I am saying yes is that if you use the word training no but on orientation we put the drivers also on test”  \r\nThere is no evidence of driver incompetence being the cause of the myriad of problems with the trucks. There is rather evidence of brake failure leading to accident of trucks, trucks failing to discharge, rims cracking.   \r\nAgain the claim that the trucks were overloaded with ore was also exposed as shallow in the following exchanges between Opoku Boateng, Esq and Patrick Baidoo:  \r\n“Q: I am referring to paragraph 19(3) of the statement of defence – particulars of negligence … so Mr. Baiddo you made a claim that the plaintiff most times overloaded the trucks, is that not the case  \r\nA: My Lord that is my case  \r\nQ: Were you aware that the materials that the plaintiff were contracted to haul was ore from the excavation site to the washing plant contained gold  \r\nA: My Lord I am aware that the material contain gold  \r\nQ: And that because these materials contain gold the Mine Company will not allow the transporter to load above limits.  \r\nA: My Lord I am not aware, I wouldn’t know.  \r\nQ: I am suggesting to you that because these vehicles were carrying ore that had gold in it they will not overload the trucks for the ore to fall away in the course of the trip.  \r\nA: My Lord I cannot confirm, I am not aware”. \r\n \r\n11   \r\nI think the claim of learned counsel makes a lot of sense and logic that no prudent company will throw away the bathwater with the baby and if the very previous mineral they were looking for was embedded in the womb of the ore why will they allow the trucks to be overloaded for some to fall by the way side when they have no idea where the gold would be. I reject this attempt too by the defendants to resist the claim.  \r\nBesides, there is also the claim that plaintiffs drove the trucks through rocky terrain contributing to the bad performance of the tyres. How did the defendants understand the purchase of use of the trucks when they were being purchased? That they were to be driven on asphalted roads in some of the plush suburbs of the city or that the trucks were made to run on rough and dusty terrain to cart earth? This is even further evidence that the trucks were not to live up to the purpose and standard which they were intended to be employed.   \r\nOne more before I rest this issue and that is on Ex ‘2’ the report allegedly prepared by Dw1. I attentively attended to the evidence of this witness and observed the considerable difficulty he experienced when he came under cross examination. He could not tell when he started work at plaintiff’s company and had problems knowing when he finished his work. He did not know who he was reporting to whiles at plaintiff’s mine site. He admit that he did not know of the existence of any warranty between the parties and yet profess to know the contents and obligations placed on plaintiff under the warranty. When pressed he prevaricated and claim not to know anything about it. I was not enamored with the performance and answers by both witnesses for the defendant at all in cross examination and further convinced me of how doomed their defence was.  \r\n \r\n12   \r\nTaking inspiration from the words of Ollenu J. A. (as he then was) in the case of KYIAFE v WONO [1967] GLR 463 that:   ‘It must be observed that the question of impressiveness or convincingness are products of credibility and veracity; a court becomes convinced or unconvinced, impressed or unimpressed with oral evidence according to the opinion it forms of the veracity of witnesses”  \r\nDefendant’s representative even had difficulty admitting of innocuous issue such as payments made by plaintiff to them to incrementally defray the cost of the trucks and denied any direct debiting of the account of plaintiff in favour of defendant of the latter’s account with Cal Bank.  \r\nThe defects were latent defects that were not observable even upon careful examination. What is latent defect has been defined in Stroud’s Judicial Dictionary (5th ed, Vol 2, page 663) as: \r\n“A latent defect is not simply any defect not discoverable through ordinary use and maintenance, but a defect or a flaw, generally in the metal or material itself, which could not be discovered by known and customary test.” \r\n  \r\nWhiles Black’s Law Dictionary (8th ed) defines hidden or inherent or latent defect as: \r\n“a product imperfection that is not discoverable by reasonable inspection and for which a seller or lessor is generally liable if the flaw causes harm. Upon discovering a hidden defect a purchaser may revoke a prior acceptance”. \r\n \r\n13  \r\nThe defects identified with the trucks were latent defects as these were concealed and could not be noticed on mere observation except with use of the trucks. I find as a fact that the trucks failed to meet the terms and warranties in its express and implied terms of being fit in terms of quality for the purpose for which they were purchased by the plaintiff. As a corollary I find that there was a breach of warranty and that the trucks were not fit for the purpose for which they were purchased.  \r\nThis then brings the court to the determination of the second broad issue as to what is recoverable by the plaintiff. Plaintiff is not asking for the cost of the trucks purchased but rather an amount of Ghc1,877.289.75 being loss of income due to the breakdown of the trucks and the cost occasioned it for the hiring of alternative trucks.  \r\nIn its quest to prove the loss of income plaintiff through its Nana Darkwah tendered additional invoices from companies such as Global Parts, Jesus Open Doors Ltd. This was in addition to Ex ‘C’ series, ‘D’, ‘E’, ‘F’, ‘G’. These were resisted by the defendant on a number of grounds. First that Jesus Open Door (JOD) is the other half of the company that has formed a joint venture with Hawkrad and are the joint plaintiffs herein and if any invoices have been generated by such an entity then it is self-serving. One can know what is recoverable only when a look at the law has exhaustively been taken with regard to damages recoverable upon a breach of contract. What is recoverable by a party has been stated under section 48 of the Sale of Goods Act, Act 137 as follows:  \r\n“the measure of damages in an action for damages is the loss which could reasonably have been foreseen by the buyer at the time when the contract was made as likely to arise from the breach of contract”  \r\n \r\n14  \r\nThis provision is nothing but another rendition given by Alderson B in the locus classicus case on damages, that is the case of HADLEY v BAXENDALE  (1854) 9 Exch 341 156. E.R.145. See also Dotse JSC in GLENCORE v VOLTA ALUMINIUM J4/40/2014 dated 28th January, 2013 where the learned Judge quoted with approval the principle in the HADLEY case in the following:  \r\nNow …  the damages resulting from the breach of  such a contract, which they would  reasonably contemplate, would  be  the amount of injury which would ordinarily follow from a breach of  contract under these special circumstances …  But, on the  other hand, if these special circumstances were wholly  unknown  to the party breaking the contract, he, at the most, could only  be supposed to have had in his contemplation the amount of injury  which  would arise generally, and in the great multitude of cases not affected by  any special circumstances, from, such a breach of contract”.   \r\nSee also the Supreme Court case of TEMA Oil REFINERY v AFRICAN AUTOMOBILE LT. [2011] 2 SCGLR 907. The special damages that the plaintiff is claiming will be possible if he shows that either that the damages are foreseeable from the nature of the breach itself or that the damages are foreseeable by the parties at the time of agreement and was within the reasonable contemplation of the parties.   \r\nIn other words in determining how much to award as compensation for damages the courts usually considers two main factors and these are the measure of damages, that is the quantum or lump sum that must be awarded and two; remoteness of damages, that is the proximate cause of the breach. This means that the damages to be awarded must not be remote but proximate to the breach. And in the case of VICTORIA LAUNDRY (WINDSOR) LTD v NEWMAN INDUSTRIES LTD [1949] 2KB 528 Asquith LJ emphasised that the test of remoteness was whether the loss was reasonably fore-see able as liable to result from the breach.     \r\n \r\n15  \r\nFor the purpose of damages either in tort or in contract is not to over enrich a party beyond his actual losses whiles the court must also ensure that the damages awarded must not be so paltry as to make the party feel that the amount awarded was incapable of covering the losses.  \r\nThe Supreme Court emphasised this principle in the case of ROYAL DUTCH AIRLINES v FARMEX LTD [1989-90] 2 GLR 623 @ 625 that:  \r\n “on the measure of damages for breach of contract, the principle adopted by the courts was restitutio in integrum, i.e. if plaintiff has suffered damage not too remote, he must as far as money could do it, be restored to the position he would have been in had that particular damage not occurred. What was required to put the plaintiff in the position they would have been in was sufficient money to compensate them for what they had lost”.  \r\nThere is further law that bolster this view by virtue of section 54 of Act 137 which is to the effect that the measure of damages is the loss reasonably foreseeable by the seller at the time when the contract was made. With the trucks having failed to perform the role for which they were purchased leading to the hiring of alternative trucks as seen in the number of days they were grounded from February, 2014 till the completion date, these flow as losses that were reasonably foreseeable by the parties and seems to be recoverable and I find same as a matter of fact and law. Learned counsel in cross examination of Augustine Kessie sought to portray that the trucks could not have been grounded for 65 days as the plaintiff alleged in the following:  \r\n \r\n16  \r\n“Q: In paragraph 21 of your amended statement of claim you claim you lost or incurred cost of GHc 1.666, 272.75 as a result of the truck being broken down for 65 days in February alone. How many days are in February?  \r\nA: 28 days but in leap year 29 days  \r\nQ: The same statement of claim paragraph 22 and 23 states that the trucks were down for 32 days in March and a whole 98 days in April. How do you explain that?  \r\nA: My Lord I think we are talking about 10 trucks, therefore you add the number of days each truck is down so it is not necessarily one truck but ten trucks of which they are down for a very different kind of days that is why you can get more than a calendar month in any instance”.  \r\nI think it is the cumulative number of days trucks break down in a month put together that makes it seem that the days the trucks do not work outstrip the days in the month. I have taken a look at the exhibits in support of this claim especially the ones coming from Jesus Open Doors Ltd. It is my view that as trucks were specifically purchased for the hauling and they could not perform leading to the hiring of alternative ones albeit by a sister company, it is right that a claim be put for the services rendered. There will be difficulty in granting the plaintiff the relief it seeks if there is evidence to show that the trucks purchased from defendant was deliberately grounded in order to enable plaintiff use trucks from its sister company to do the work with intent to claim those monies from defendant. But I find none of such here.  \r\n \r\n17  \r\nIndeed where a seller has committed a breach under section 55 of Act 137 the buyer can sue under this head. Where the seller breaches a condition or a warranty, the buyer may sue the seller for the breach complained of. The buyer may in the alternative set up a claim to such damages in diminution or extinction of the price. According to section 56, the measure of assessment is the loss foreseeable by the seller at the time of the contract.  \r\nIt is therefore not the correct position of the law as counsel for defendant attempt to claim in her written submission that a party who invokes an implied warranty has a remedy to reject the goods sold and as plaintiff made no attempt to return the trucks there should be no remedy for him. For the law allows the buyer two principal remedies. One to reject the goods under sections 49 to 52 or to sue on his personal rights under sections 53 to 58. Having resorted to the second remedy it is well within his right and counsel’s submission is not the position upon a clear reading of the Sale of Goods Act, at all.  \r\nThe amount of Ghc1,877,289.75 seems by my arithmetical calculation to be closer or same to the exhibits tendered as cost incurred and I so grant the relief for the recovery of that sum by plaintiff following my finding that the defendant was in breach of the conditions and warranty for the sale of the trucks to plaintiff.  \r\nBut plaintiff wants to claim damages on the basis that the non-renewal of his contract was the direct result of the non performing trucks of the defendant. Where is the evidence? From the record the evidence plaintiff adduce in support of this claim is Ex ‘M’.  This Ex ‘M’ is letter of notification of regret by Adamus Resources Ltd. that plaintiff was unsuccessful in the tender process to renew its contract with them. The reasons were not provided safe to say that the tender was keenly contested. I think it \r\n \r\n18  \r\nwould be speculative to conclude that the reasons for the non-renewal was the nonperformance of the trucks. As to the non-performance of the trucks being a factor can only remain at the realm of suspicion and the court has always dealt with evidence and not even a multitude of suspicions. The attempt by plaintiff to seek damages for nonrenewal of its contract with Adamus Resources Ltd. is accordingly declined.  \r\nThough plaintiff did not specifically ask for interest on the amount of Ghc 1,877,289.75 claimed but it is my understanding of the law on award of interest that interest is payable on damages awarded by the court. See ROYAL DUTCH AIRLINES v FARMAX LTD. [1989-90] 2 GLR 623 SC. For in NTHC v ANTWI [2009] SCGLR 117; interest was not claimed for, nonetheless the Supreme Court granted an award of interest to avoid unjust enrichment. This is what the Supreme Court had to say on award of interest not specifically claimed for in the case of SMITH v BLANKSON [2007-2008] 1 SCGLR 374 at holding 3 as follows:  \r\n“the plaintiff-appellant did not make any claim for an award of interest on the amount which was to be refunded …, the court would in the interest of justice order that since the defendant –respondent did not immediately refund the money after the receipt of the request for refund, interest must be paid on the amount due at the prevailing commercial bank rate from the date of judgment of the trial High Court until the date of payment”.  \r\nAs the invoices for the hiring of alternative trucks and the cost of repairs were forwarded to the defendant by plaintiff for refund and same were ignored or refused I think the justice of this case demands that I award interest on the amount payable by the defendant at the prevailing commercial bank rate from when they became due till date of final payment. \r\n \r\n19  \r\n  I will award cost of Ghc 25.000.00 in favour of the plaintiff.       \r\n        (Sgd.) Eric K. Baffour, Esq. Justice of the High Court    \r\nREPRESENTATION:  \r\nAugustine Kessie for Plaintiff Present Patrick Baidoo for Defendant Present Opoku Boateng, Esq., for plaintiff Present Anita Sheila Crabbe, Mrs for Defendant Present ', 'ERIC K. BAFFOUR, J', 'Civil', '', 'OCC/58/2014', '', '', '', '0000-00-00', ''),
(613, 'HBM COMPACT LTD VRS  PROTEUS LTD.  ', '', '../links/cases/HBM v Proteus.pdf', 'Yes', '', '2016', 'High Court', 'JUDGMENT  \r\nThe 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.  \r\nIn 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.”  \r\n2  \r\nThe 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.    \r\nThe 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.  \r\nThe 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 \r\n3  \r\nits 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).  \r\nIn 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.   \r\nSection 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 \r\n4  \r\nthe 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”.     \r\nFrom the foregoing, therefore, it is clear that the Plaintiff, to succeed on its claims, assumes the onus of proving its assertions against the Defendant.  \r\nThe 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”.  \r\nMr. 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 \r\n5  \r\nand 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.     \r\nTo 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.  \r\nIt 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.  \r\n6  \r\n  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?    \r\nOne 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.    \r\nThe 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 \r\n7  \r\n… usually arise from expressions truly representing intention …”.  See JURISPRUDENCE, Holland, 12th ed. (1916) at p. 262.  \r\nI 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.    \r\nConsequently, 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.     \r\nI award costs in the sum of GH¢15,000.00 in favour of the Plaintiff against the Defendant.     \r\n(Sgd)        JUSTICE JENNIFER ABENA DADZIE     JUSTICE OF THE HIGH COURT     (COMMERCIAL DIVISION) \r\nCOUNSEL:     RAYMOND BAGNABU, ESQ., OF PWAMANG & ASSOCIATES, COUNSEL FOR PLAINTIFF CARDINAL LAW GROUP, COUNSEL FOR DEFENDANT  \r\nCASES REFERRED TO:  \r\nBANK OF WEST AFRICA LTD. v. ACKUN [1963] 1 GLR 176-182 \r\nHUYTON-WITH-ROBY U.D.C. v. HUNTER [1955] 2 All E.R. 398, C.A.   \r\nFAIBI v. STATE HOTELS CORPORATION [1968] GLR 471-480 \r\nMAJOLAGBE v. LARBI [1959] GLR 190 \r\nKLUTSE v. NELSON [1965] GLR, 537, SC  \r\nZABRAMA v. SEGBEDZI [1991] 2 GLR 221, CA. ', 'JENNIFER ABENA DADZIE, J', 'Civil', '', 'RPC 33/15', '', '', '', '0000-00-00', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(614, 'KIJANI RESOURCES GHANA LTD  VRS   1. GHANA CHEMICALS LTD.,  2. JACOB MAWULI SETSOAFIA   ', '', '../links/cases/JUDGEMENT.pdf', 'Yes', '', '', 'High Court', 'JUDGMENT  \r\nThe Plaintiff, a Limited Liability Company incorporated under the laws of Ghana by the endorsement on her Writ of Summons is claiming the following against the Defendants jointly and severally: i. An order for the payment of the sum of Two Million, Seven Hundred and TwentyThousand Ghana Cedis (GH¢2,720,000.00) being the cost of Extra Neutral Alcohol (ENA) supplied to the 1st Defendant by the Plaintiff ii.  Interest on (i) at the prevailing bank rate from 8th January 2016 till date of final payment iii. General damages for breach of contract evidenced by 1st Defendant’s conduct in terms of the sale and purchase agreement between the parties hereto dated the 8th of January, 2014 iv. General damages for fraud evidenced by the 2nd Defendant’s conduct particularized in    paragraph 16. iv. Punitive costs.   \r\nThe Defendants entered appearance to Plaintiff’s writ but failed to file a defence. Default Judgment was therefore entered against them on the 22nd day of December 2015 in respect of \r\n2  \r\nPlaintiffs reliefs (i.) and (ii.) and the matter adjourned for the assessment of damages. Again, on the 24th of February 2016, the Defendants even though having been served duly served with hearing notices for the assessment of damages failed to appear by themselves or by their counsel. This Court therefore proceeded to hear Plaintiffs evidence in proof of its claim for damages.  \r\nGodwin Frazer, Plaintiff’s representative testified on behalf of Plaintiff, he stated that he, as the Commodity Manager of the Plaintiff Company, entered into a sale and purchase contract with the Defendants on the 8th day of January 2016 for the sale of  One Million (1,000,000) litres of Extra Neutral Alcohol (hereafter referred to as ENA) to the Defendants.  The evidence of Plaintiff’s representative was essentially in line with Plaintiff’s pleadings. In proof of Plaintiff’s claim for damages for breach of contract, the witness tendered in evidence as EXHIBIT A the sale and purchase agreement entered into between the Parties to the suit.  Clauses C and D OF EXHIBIT A stipulate that the 1st Defendant, represented by the 2nd Defendant, at the time of execution of the contract had satisfied the condition precedent for obtaining the Plaintiff’s consent to enter into the said contract by securing a guarantee bond for the sum of Two Million, Seven Hundred and Twenty Thousand Ghana Cedis (GH¢2,720,000.00) issued in favour of Plaintiff.  According to Plaintiff’s representative, the guarantee bond was to subsist for a period of 90 days as defined in clause 1 sub clause 1.1 of EXHIBIT A.  However, soon after the Parties executed the contract, the said guarantee bond was withdrawn. Plaintiff avers in paragraph 6 of its Statement of Claim that the Unique Insurance Company by a letter, dated the 17th of January, 2014 cancelled the guarantee bond  but  it is not clear to this court what gave rise to the  cancellation of the said guarantee bond. It is however not in dispute that the Defendants refused to replace the said guarantee bond in flagrant breach of the terms of the agreement.  According to the witness, in view of the Defendants refusal to replace the guarantee bond, Plaintiff cancelled the entire contract but was soon to discover that the 1st Defendant had through its Managing Director forged the signature of the witness and managed to evacuate over time , the entire consignment of ENA worth Two Million Seven Hundred and Twenty Thousand Ghana Cedis (GH¢2,720,000.00), from a customs bonded  warehouse without the knowledge or consent  of Plaintiff and without having made any payments  for same.  Plaintiff’s representative enumerated the losses suffered by plaintiff as a result of the said breach by the defendants to include, “currency loss” of Five Hundred and Twenty Five US Dollars (US$525.00), an amount of One Hundred and Twenty Eight Thousand US Dollars (US$128,000.00) spent on two independent security personnel and Two Hundred and Forty Thousand US Dollars (US$240,000.00) to “follow the transaction and to maintain a presence”.  He also gave the figure of Nine Hundred and Sixty \r\n3  \r\nThousand US Dollars (US$960,000.00) as representing loss of profits by the Plaintiff Company for the period material to the instant suit i.e. the period beginning January 2014 till January 2016.   \r\nIt would appear from the evidence of Plaintiff’s representative that the losses allegedly suffered by Plaintiff as a result of the Defendants breach were clearly calculable and quantifiable losses. In my opinion, these ought to have been specifically pleaded, particularized and proved in support of a claim for special damages if the Plaintiff expected this court to take into account all the specific amounts Plaintiff claims to have lost as a result of the Defendants breach. Be that as it may, the Plaintiffs’ claims before this Court, are for general damages for breach of contract and for general damages for fraud perpetrated on it by the Defendants. I must say, that I do not disregard the fact that general damages are by their very nature at large and that in their assessment, it lies within the discretion of the Court acting (of course,) within laid down principles, to grant an award that is fair and reasonable given the circumstances of each case. However, the Plaintiff would have assisted the Court in the proper exercise of its discretion, if it had provided more cogent evidence as to how those specific amounts were arrived at.  For instance, why was it necessary for the Plaintiff Company to engage the services of two security personnel at a cost of Two Hundred and Eighty Thousand US Dollar (US$280,000.00) when there is evidence on record that the matter had been reported to and was being investigated by the Ghana Police Service?  And what exactly gave rise to the Plaintiff’s total expenditure of Two Hundred and Forty Thousand US Dollars (US$240,000.00) which the witness stated was incurred in a bid to “follow this transaction and to maintain a presence”?  Additionally, what was the basis for the Plaintiff’s computation of loss of profits for the period between January 2014 and January 2016 which it pegs at Nine Hundred and Sixty Thousand US Dollars (US$960,000.00)?  \r\nHaving failed to provide this Court with the necessary details or particulars of the losses it alleges to have been incurred, the pertinent question at this stage is whether or not the Plaintiff should still be entitled an award of damages given the facts and circumstances of this case?   \r\nIn the case of DELMAS AGENCY V FOOD DISTRIBUTORS INTERNATIONAL LTD. 2007 - 2008 SCGLR , the Supreme Court held at page 748 as follows”…general damages is such as the law will presume to be natural or probable consequence of the Defendants acts.it arises by inference of the law and does not need to be proved by evidence.”   \r\nIt follows therefore, that Plaintiff should without further proof be entitled to an award of general damages once it is established that there has been an infringement of a legally enforceable right \r\n4  \r\nby the Defendant.  AS stated earlier on in this judgement, the Defendants though having entered appearance, failed or refused to file a defence.  The evidence of the Plaintiff therefore stands unchallenged and this Court accepts the same.  I accordingly find that Defendants are in breach of the sale and purchase agreement entered in between the Parties on the 8th of January 2014.  On the 22nd day of December, 2015, this Court entered final judgement against the Defendants in favour of Plaintiff for the sum of Two Million, Seven Hundred and Twenty Thousand Ghana Cedis (GH¢2,720,000) being the cost of the ENA supplied to the Defendant by Plaintiff together with interest on the said sum at the prevailing bank rate from the 8th day of January until date of payment. The underlying principle governing the award of interest is to compensate a Plaintiff who, owing to the Defendant’s breach of contract has been deprived of the opportunity to work or trade with his money in order to earn a profit or an income. See the DICTUM OF DENNING MR in the case of HARBUTTS PLASTINE LTD VRS WAYNE TANK &PUMPCO LTD(1970)1AER 225@236. I therefore find that having been awarded interest by this court, Plaintiff has been adequately compensated for what Plaintiffs representative termed “loss of opportunity to conduct business” for the period commencing January 8, 2014 until date of final payment. Plaintiff makes a further claim for damages for breach of contract.  It is trite learning that the primary function of damages is to place the Plaintiff in as good a position (so far as money can do it) as if the matter complained of had never occurred.  I have already indicated the difficulty I face in determining the precise measure of damages to award in view of the inadequacy of the evidence placed before me, regarding the Plaintiff’s losses.  However, the uncontroverted evidence before this court shows the impunity with which the Defendants breached the terms of the contract entered into between the Parties.  \r\nIt is not in dispute that the conduct of the Defendants has caused Plaintiff great   inconvenience, embarrassment and as its representative testified, a disruption of its business dealings on the continent.  This in my opinion, should entitle Plaintiff to substantial damages.  It is the case of Plaintiff that at the time of entering into the contract in the year 2014 the ENA supplied to the Defendant based on the Bank of Ghana exchange rate was worth 1.2 Million US Dollars (US$1,200,000.00) in value. Unfortunately, due to the current depreciation of the cedi against the dollar, the value of the same quantity of ENA has fallen in cedi terms.  Clause G of Exhibit A stipulates that payment for the ENA will be based on the prevailing dollar exchange rate and the vendor (the Plaintiff) is entitled to recover any currency loss that may occur during the guarantee period. Quite clearly, the Plaintiff has been kept out of its money by the Defendants far beyond the 90 day guarantee period and is therefore entitled to damages for the said loss. \r\n5   \r\nIn The Supreme Court case of TEMA OIL REFINERY V AFRICAN AUTOMOBILE {2011} 2SCGLR 907, the Court held that in assessing damages for breach of contract, a Court is not only required to take into consideration the prevailing economic forces but is also required to consider the Defendants conduct and its net effect on the financial fortunes of Plaintiff company.  \r\nThe Plaintiff’s witness fixes the loss in value of the ENA at Five Hundred and Twenty Five Thousand US Dollars (US$525,000) or in this case, its Ghana cedi equivalent. This Court recognizes that Plaintiff’s representative apart from his bare assertions regarding the fall in the value of the cedi against the dollar, failed to furnish evidence to substantiate his claims. This notwithstanding, I am of the view that the steady decline in the value of the Ghana cedi to the dollar over the past two years coupled with the high rate of inflation is a matter in respect of which this Court may take judicial notice in accordance with SECTION 9 of the EVIDENCE ACT, NRCD 323.  Additionally, there is no evidence on record challenging the assertions of the witness. I therefore accept the evidence of Plaintiff’s witness regarding the loss in value of Plaintiff’s money and find that the said loss is attributable to the Defendants’ breach.  Accordingly, I shall take the said loss into account in assessing the quantum of damages payable to Plaintiff.  In computing the amount payable and in the light of the evidence led, I consider it safe for this Court to rely in the Bank of Ghana official web site which in my opinion is a credible source of information on current interest rates. The said official web site fixes the current Bank of Ghana interbank rate of interest at 25% as at March 2016. In view of the fact that Plaintiff has already been awarded interest on the said sum, the Plaintiff, in my view, should be entitled to an award in general damages that will represent a fair and reasonable compensation for  losses suffered other than the loss of profits.  By my computation, the Plaintiff will for the two year period, based on the Bank of Ghana interbank interest rate of 25%, be entitled to a minimum cumulative interest of One Million Three Hundred and Sixty Thousand Ghana Cedis (GH¢1,360,000) which translates into Three Hundred and Fifty Three Thousand US Dollars (US$353,000.00) using the current Bank of Ghana Exchange Rate of $1 to ¢3.85.  In the circumstances, I consider it fair and reasonable to award plaintiff damages of Six Hundred and Sixty Two Thousand, Two Hundred Ghana Cedis (GH¢662,200.00) being the Ghana Cedi equivalent of One Hundred and Seventy Two Thousand US Dollars (US$172,000.00.  This amount represents the difference between the amount of Five Hundred and Twenty Five US Dollars (US$525.00) representing currency loss and the amount of Three Hundred and Fifty Three Thousand US Dollars (US$353,000.00) being the dollar equivalent of the interest awarded on the principal sum.  \r\n6  \r\nIn support of the Plaintiff’s claim for damages for fraud against the Defendants, Plaintiff’s witness tendered in evidence EXHIBIT B a police report purportedly issued in respect of a criminal investigation involving the 2nd Defendant and two other persons who are not Parties to the instant suit. Under SECTION 13 (i) OF THE EVIDENCE ACT NRCD 323, where it is alleged in a civil case that a crime has been committed by a party, the allegation must be proved to the same degree as the onus of proof required in criminal cases.  This means that proof of a crime which is directly in issue requires proof beyond reasonable doubt.  I do not find that EXHIBIT B establishes beyond reasonable doubt that, the 2nd Defendant forged the signature of Gordon Frazer, Plaintiff’s representative.  Indeed, the said exhibit merely concludes that “it is highly probable that Gordon Frazer could not have authored any of the alleged authored signatures”.  No mention is made in EXHIBIT B of a finding that the 2nd Defendant forged the said signature a bid to secure the release to him of the ENA. Infact no mention is made of the ENA at all in the said exhibit.  I am also unable to accept the Plaintiffs assertion that the refusal of the Defendants to replace the guarantee bond necessarily constitutes fraud, when the evidence on record shows that there was a guarantee bond in existence at the time of executing the contract. The Plaintiff did not lead any evidence on what exactly gave rise to the withdrawal or cancellation of the said guarantee bond by the Unique Insurance Company, and in my opinion a refusal by the Defendants to replace the guarantee even though it amounted to a breach of the contractual terms did not necessarily amount to fraud. I do not consider it safe to infer fraud on the part of the Defendants on the basis of the evidence before me. I therefore hold that Plaintiff is not entitled to its claim for damages for fraud.  \r\nAccordingly, I award Plaintiff an amount of Six Hundred and Six Two Thousand, Two Hundred Ghana Cedis (GH¢662,200.00) to be paid by the Defendants as general damages for breach of the contract.  \r\nCosts of GH¢20, 000.00 awarded in favour of Plaintiff against the Defendants jointly and severally.    \r\n           [SGD]           MRS. AKUA SARPOMAA AMOAH               JUSTICE OF THE HIGH COURT  aey/…   ', 'AKUA SARPOMAA AMOAH (MRS), J', 'Civil', '', 'BDC/07/2015', '', '', '', '0000-00-00', ''),
(615, 'KELVIN ATSU WILSON   VRS   1. GLO MOBILE GHANA LTD., 2. UNIBANK CAPITAL (GHANA) LTD., 3. FIRST CAPITAL PLUS BANK LTD  ', '', 'links/cases/KELVIN ATSU WILSON v GLO.pdf', 'Yes', '', '2016', 'High Court', 'RULING   \r\nThe court has been called upon in this application to make a determination as to whether pending the adjudication of the main disputes between the parties, the court ought to restrain the bearer of an unconditional Bank guarantee from having recourse to that security.   Plaintiff/Applicant has moved the court for the grant of an interlocutory injunction praying the court to restrain the 1st Defendant/Respondent from taking steps to realize the Bank guarantee provided on behalf of the Plaintiff/Applicant in favour of the 1st defendant/respondent or an order to restrain the payment of an amount of Ghc994,750.00 as the sum of money that 1st defendant/respondent contends it is entitled to. In that same vein plaintiff also seeks an order to restrain 2nd and 3rd defendant/respondents \r\n \r\n2 | P a g e  \r\nfrom honouring any demand for the payment of the security that would be made by the 1st defendant.   In a rather circumbendibus affidavit, further affidavit and supplementary affidavits in support of this application, the applicant depose that his business, Chafal Communication Ventures, deals in sales, marketing of SIM cards, rechargeable cards, modems and was appointed as a Business associate or dealer by 1st defendant to market its products. Due to his credit performance in the marketing of 1st defendant products, Glo Mobile Ghana inundated him with products for distribution far in excess of what he needed. He did not have space to stock the excess products pushed to him for sale by the 1st defendant whereupon the latter offered to keep them for the applicant.  \r\nAs condition for the offering of the products he was made to approach the 2nd and 3rd defendants to issue a bank guarantee for the due repayment of the monies for the products given him. To applicant whiles his stocks were kept by the 1st defendant, its staff cultivated the habit of stealing some of the products  with one Alabi Bamidele having confessed to the stealing and applicant estimate that about Ghc1,700.000 have been stolen by the staff of 1st defendant. To applicant, he does not owe the 1st defendant the amount of Ghc 994,750.00 due to the pilferage as he has raised issues of fraud and hence the need to restrain the encashment of the bank guarantee.  \r\n1st defendant has resisted this application and in an affidavit in opposition and subsequent supplementary affidavits claim that a dealer may trade on cash basis or credit basis and if a dealer opts for credit trading it is the custom of the 1st defendant may ask the dealer to provide a bank guarantee \r\n \r\n3 | P a g e  \r\nand the dealer may issue postdated cheques to the value of the stocks ordered and hence the bank guarantee provided by the plaintiff. 1st defendant claim that stocks are released to its dealers the moment the postdated cheques are issued and do not keep the goods of customers that they have paid for. Besides, if any stocks were kept at all it was a purely a private arrangement between the plaintiff and the Alabi Bamidele that has nothing to do with the 1st defendant.  \r\nOrder 25 of the High Court, (Civil Procedure) Rules, C. I 47 enjoins the court to grant an application for injunction in all cases in which it appears just or convenient to do so. Has there been enough showing on the face of the affidavits and the documents filed to convince the court that it will be just and convenient for the court to hold in abeyance the calling of the beneficiary the Bank guarantee to his benefit?  \r\nIt is the general rule that the invocation of a Bank guarantee by the beneficiary can be restrained by an injunction. The caveat is that the normal consideration which may apply in granting an injunction will not apply in matters where Bank guarantee or letters of credit are involved. The reason is that Bank guarantee agreement is independent of the main contract. See the case of HAMZEH MALAS & SONS v BRITISH IMEX INDUSTRIES LTD [1958] 2 QBD 127. The courts follow strict approach in granting injunctions against the encashment of Bank guarantee when it appears to be unconditional guarantee.  \r\nIn the case of UP STATE SUGAR CORP v SUMAC INTERNATIONAL LTD. (1997) SCC 568 the Indian Supreme Court had this to say: \r\n \r\n4 | P a g e   \r\n“whenever an irrevocable and unconditional bank guarantee to be paid without demur is invoked, the Bank is bound to honour the guarantee irrespective of any dispute raised by the customer with notable exceptions of fraud and irretrievable injustice”.   The two exceptions were explained further to mean fraud committed in the notice of the bank which would vitiate the very foundation of guarantee; (ii) injustice of the kind which would make it impossible for the guarantor to reimburse himself.  \r\nIn the case of EDWARD OWEN ENGINEERING v BARCLAYS BANK INTERNATIONAL LTD. [1978] 1 Lloyds Rep. 166 which involved a performance bond and a contract between English supplier and a Libyan customer where the English supplier issued a performance bond with the English supplier’s subsequent failure to deliver on the promise, an issue arose as to whether the bond must be paid. The court held per Lord Denning that:  \r\n“A bank which a performance guarantee is made must honour that guarantee according to its terms. It is not concerned in the least with the relations between the supplier and the customer, nor with the question whether the supplier has performed his contracted obligation or not, nor with the question whether the supplier is in default or not. The bank must pay according to its guarantee on demand … without conditions. The only exceptions is when there is fraud of which the bank has notice”  \r\n \r\n5 | P a g e   \r\nThere was even a better rendition of this principle and expansion of the scope of the exceptions that may sway the court to grant an injunction restraining the payment of a bank guarantee in the case of HIMADRI CHEMICALS v COAL TAR REFINING COMPANY (2007) AIR SC 2798 when the court noted that:   \r\n “...the courts should not readily issue injunction to restrain the realization of a Bank Guarantee or a Letter of Credit. So far as the first exception is concerned, i.e. of fraud, one has to satisfy the court that the fraud in connection with the Bank Guarantee or Letter of Credit would vitiate the very foundation of such a Bank Guarantee or Letter of Credit. So far as the second exception is concerned, this court has held ... that it relates to cases where allowing encashment of an unconditional bank guarantee would result in irretrievable harm or injustice to one of the parties concerned”.  \r\nSee VINITEC ELECTRONICS v HCL INFOSYSTEMS (2008) 1 SCC 544.  \r\nThe question is has the Applicant been able to situate its application within the exception to the general rule that a bank must make good its guarantee when there had been a failure of a party upon whose benefit a guarantee was provided, unless there is an issue of fraud that goes to the root of the issuance of the guarantee and of which the Bank is aware or where there will \r\n \r\n6 | P a g e  \r\nbe an irretrievable harm?  \r\nFor an allegation of fraud to succeed it has been held that it “must be of an egregious nature such as to vitiate the entire underlying transaction”.  See HIMADRA CHEMICALS CASE Supra. And in BOLIVINTER OIL SA v. CHASE MANHATTAN BANK (1984) 1 All ER 351 it was noted that  the exceptional case where an injunction may be granted is where it is proved that the bank knows that any demand for payment already made or which may thereafter be made will clearly be fraudulent. But the evidence must be clear both as to the fact of fraud and as to the bank’s knowledge.   \r\nThe allegation of fraud made by the Applicant is in respect of what he claims to be an act of theft perpetrated by an employee of the 1st Defendant/Respondent. There is nothing from the affidavit evidence that there was an official arrangement by plaintiff with 1st defendant for the latter to keep stocks that plaintiff had already purchased. And even if there was fraud on the part of one Alabi Bamadele it is not the kind of fraud that is contemplated by the law to vitiate the encashment of bank guarantee. For the fraud must be one committed to the knowledge of the bank. It seems clear that the Applicant cannot find any solace under the first leg of exceptions that an applicant must set out to prove fraud to stop the honouring of the guarantee.   \r\nRegarding the second leg that the courts may stop the honouring of a bank guarantee if it would cause irreparable harm; what the law expects to be an irreparable harm has been said to be an exceptional circumstances which make it impossible for the guarantor to reimburse himself if he ultimately \r\n \r\n7 | P a g e  \r\nsucceeds or better still that the 1st Respondent will not be in a position to pay back the monies it received. The Law Dictionary defines irreparable harm or injury to mean   \r\n “the type of harm which no monetary compensation can cure or put conditions back the way they were”.   \r\nIt connotes a harm that is of irretrievable effect. See AMERICAN CYANAMID v ETHICON [1975] AC 396. There is no evidence from the plaintiff/applicant to the effect that when the 2nd and 3rd Respondents honour the guarantee and plaintiff succeeds in this case the 1st Respondent would not be in a position to refund the monies paid it by the banks. Applicant’s worry is in respect of the sale of his security by the banks after the banks have complied with the terms of the irrevocable guarantees they gave. As long as the harm or injury could adequately be compensated for in terms of damages, whatever harm suffered cannot be said to be an irreparable harm. From the exhibits especially the bank guarantee provided in Ex ‘D3’ it notes that:  \r\n “The obligations of the guarantor under the guarantee shall be absolute and unconditional…”  \r\nWhen a bond in a contract is couched in such terms the courts would not permit applicants to frustrate the operation of such agreements by needless applications such as this one to prevent a beneficiary from having recourse o the security. On the whole the court is satisfied that the case of the Applicant has not been brought within the exception to necessitate the grant of an \r\n \r\n8 | P a g e  \r\ninjunction to restrain the call for the bank guarantee provided by the 2nd and 3rd Defendant/Respondents.   \r\nI accordingly dismiss this application as baseless and lacking merits. I will award cost of Ghc1.000.00 taking into consideration how long this application has stayed in the court with the hands of the 1st defendant tied from having recourse to the security.     \r\n         (Sgd.) Eric K. Baffour, Esq. Justice of the High Court   \r\nRepresentation:  \r\nPlaintiff/Applicant – present  Taiwo Akinyeye Represents the 1st Defendant/Respondent – Present  Wisdom Anothnio, Esq. for Plaintiff/Applicant – Present  Daniel Addo Asiedu, Esq. for 2nd Defendant/Respondent – Present  ', '	ERIC K. BAFFOUR, J', 'Civil', '', 'GJ/407/2016', '', '', '', '0000-00-00', '');
