
JUDGEMENT   
The Plaintiff is a Limited Liability Company registered under the Laws of Ghana and avers that its core objectives are trading, mining, real estate, machinery and mining. The 1st Defendant is described as a former employee of 1st Plaintiff and the 2nd Defendant as “a company being used by the 1st Defendant to exploit the Plaintiff and divert resources of the Plaintiff.”  It is unclear from the pleadings, what   2nd Defendant’s corporate structure is, but I shall address the said issue later on in this judgment if that becomes necessary.   
The Plaintiff’s case is that the 1st Defendant was initially engaged as a clerk at its Anwia Nkwanta branch office but was later promoted to the position of shops Manager in charge of Plaintiff’s stores in Kumasi.  According to Plaintiff, sometime in January, 2015, it noticed the unusual absence of the 1st Defendant from duty.  The 1st Defendant continued to “behave strangely” in spite of the several warnings issued her by Plaintiff.   The Plaintiff therefore set up a monitoring team which upon investigation discovered that the 1st Defendant had since April 2015, hatched a plan to fraudulently divert resources and materials of her employers, the Plaintiff Company, to set up a rival company to compete with the Plaintiff’s business.  The Plaintiff avers that an internal audit of the accounts of 1st 
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Defendant at the Kumasi store revealed that the 1st Defendant had taken advantage of her position to obtain illegitimate income and had between the months of May and July 2015, “fraudulently” remitted to China about Sixty-Five Thousand Ghana Cedis (GH¢65, 000.00) without the Plaintiff’s knowledge.   
Plaintiff contends that it came to the inescapable conclusion that these monies were stolen from its coffers since the 1st Defendant could not have raised the said amount legitimately in Ghana as her salaries are paid directly into her accounts in China.  Plaintiff charged that, the 1st Defendant conduct constituted “fraudulent breach of trust and an abuse of her position in the company”.  
The particulars of fraud as alleged were given as follows:  
A. As the manager of the Kumasi stores the 1st Defendant opened a secret store where she diverted goods and customers from the Plaintiff’s shops and sold them (SIC} for her personal benefits.  
b. The 1st Defendant formed the 2nd Defendant with the support of one Israel Asubonteng with the purposes of exploiting the Plaintiff and using the Plaintiff’s resources and funds to order same goods from China for themselves.  
c. Between May and July 2015, about Sixty-Five Thousand Ghana Cedis (GH¢65, 000.00) of sales belonging to the Plaintiff were not accounted for.          
The writ which was issued on the 26th of October 2015 was duly served on the 1st and  2nd Defendants, the same day i.e on the 26th of October , 2015  but they failed to enter appearance to the writ or to file a defence within the time frame stipulated by the rules. This Court therefore upon application by Plaintiff proceeded to hear Plaintiff’s evidence in accordance with Order 13(6) (1)&(2) of the High Court  (Civil Procedure)Rules, CI 47.    Wang Zheng, Plaintiff’s Managing Director testified on behalf of Plaintiff. He stated that   the 1st Defendant is a former employee of Plaintiff who served as manager of one of the Plaintiff’s shops at Anwia Nkwanta in Kumasi. He further described the 2nd Defendant as the 1st Defendant’s partner.  His testimony was essentially in line with his pleadings. The Plaintiff tendered the following exhibits in support of its case: 
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EXHIBIT A- A24- a purported translation of Whats App messages sent by the 1st Defendant to her sister in china and a director of the 2nd Defendant  
EXHIBIT B- a report on an internal audit conducted for Keyun Machinery Ltd.   
EXHIBIT C & C1 - a combined transport bill of lading dated the 29th of July, 2015 which appears to name Defendants as consignees of 220 packages of crusher machine parts.  
At the close of its case, Plaintiff’s evidence stood unrebutted and unchallenged due to the failure or refusal of the Defendants to appear to defend the action. It is indeed trite learning that unchallenged or uncontroverted evidence will ordinarily lead to a case being resolved against the defaulting Party.      However, before proceeding to weigh up the evidence led by Plaintiff in this Court, I consider it necessary to refer to Plaintiff’s claim against the Defendants.  Plaintiff’s writ is endorsed with the following reliefs among others.  
a) “A declaration that as manager and employee of Plaintiff, the 1st Defendant of (SIC)  could not use resources of the Plaintiff to import goods of the same and similar nature in the name of 2nd Defendant for their personal benefit.  
b) A declaration that the goods imported from China into Ghana by the Defendants are the property of Plaintiff and same be delivered to Plaintiff.   
c) An order of perpetual injunction directed at the Defendants, their assigns workmen, agents, etc. form [sic] engaging in the same trade amongst plaintiff’s customers. “  
From the above, it is quite clear that the first two reliefs endorsed on the writ seek declaratory reliefs from this Court.  I observe, given the circumstances of this case, that the Plaintiff after proceeding in accordance with order 10 rule 6 of CI 47, following the failure of the Defendants to enter appearance to Plaintiff’s writ, presently seeks default judgment 
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against the said Defendants. Such applications in my view, are governed by order 13 rule 6(1) and (2) of CI 47.  Order 13 (6) rule 1 and 2 of CI 47 state as follows:  
1) Where the Plaintiff makes against the Defendant a claim that is not of a description mentioned in rules 1 to 4 and the Defendant fails to file a defence to the claim, the Plaintiff may, after the expiration of the period fixed by these rules  for filing a defence, apply to the Court for judgement.  
2) On hearing of the application, the Court shall give such judgment as the Plaintiff appears entitled to by the statement of claim (emphasis mine)  
My understanding of rule (2) above, is that, where a claim is for declaratory relief which, under rule 13 (1 ) of CI 47 falls under  “a claim of a description not  mentioned in rules 1 to 4”, Plaintiff will not be entitled to an automatic grant merely because the evidence is uncontroverted or the case uncontested but that the Court  in such cases will  give judgement as “Plaintiff appears entitled to by the statement of claim”.  In other words, the failure of a Defendant to put up a defence will not relieve the Plaintiff of his duty to adduce cogent evidence to satisfy the Court that he or she is entitled to the reliefs being sought. SEE the case of REPUBLIC V HIGH COURT ACCRA, EXPARTE OSAFO [2011] 2 SCGLR 966.  
Against this backdrop, I now proceed to assess the evidence of the Plaintiff led in this Court. Plaintiffs representative tendered EXHIBIT A series, an alleged English translation of a verbatim transcript of WhatsApp conversations (originally in Chinese) purportedly held between 1st Defendant and her sister in China and another person described by the witness as a director of 2nd Defendant.  This was tendered in support of Plaintiff’s assertion that the 1st Defendant during the period that she served as manager of Plaintiff Company had secretly set up a rival company into which she diverted funds and resources belonging to Plaintiff Company for her personal benefit.   
In evaluating the probative value of EXHIBIT A series, I must, for the avoidance of doubt, state firstly, that this Court is in no position to ascertain if the English version of EXHIBIT A series is a true and accurate translation of its attached Chinese version, for, no one was 
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called from the GHANA ASSOCIATION OF TRANSLATORS AND INTERPRETERS, the body which purportedly converted the alleged  conversation from Chinese into English, to give evidence in confirmation of this. But even if this Court were to proceed on the assumption that the said translation is accurate, EXHIBIT A series presents this Court with further difficulties. Besides, the fact that the said exhibit does not tell me the year in which the said conversation is supposed to have taken place on WhatsApp, there is nothing in the said exhibit that points me to which of the statements are attributable to the 1st Defendant, her sister in China or to the said director of the 2nd Defendant.  I will presume from the pleadings that Israel Asubonteng is the one being referred to as a director of 2nd Defendant in Plaintiff’s testimony but there is also the mention of a “friend” in EXHIBITS A1, A22 and A24. The evidence led in this Court does not tell me who this ‘friend” is.  I have attempted to wade through the confusion by a careful reading of the entire discourse in EXHIBIT A series but I must confess that my confusion has been further heightened by EXHIBIT A 23, in which this person who I all along assumed to be the 1st Defendant from the discourse, now appears to be informing the selfsame 1st Defendant of the scheduled arrival of 1st Defendants container on the 1st of September. Who said what in the EXHIBIT A series, is therefore anybody’s guess.  I also wish to reiterate at this point, the difficulty I face in assessing the culpability or otherwise of the 2nd Defendant due to the absence of any evidence regarding its corporate structure.  In stating the particulars of fraud alleged against the Defendants, Plaintiff stated in its paragraph 9(b) as follows:   
“The 1st Defendant formed the 2nd Defendant with the support of one Israel Asubonteng with the purposes of exploiting the Plaintiff and using the Plaintiff’s resources and funds to order same goods from china for themselves.”   
There is no evidence before me regarding the formation or corporate structure of the 2nd Defendant and the nature of its objects.  Indeed by the nature of its averment, the Plaintiff was required to lead evidence not merely to establish how and when the 2nd Defendant came into existence but that it was formed by the 1st Defendant for the “purposes of exploiting the Plaintiff”.  However, there is hardly a scintilla of evidence in support of this allegation before this Court.  Mention is made of a director of 2nd Defendant but it is not clear from the pleadings or from its name whether the 2nd Defendant is an entity with separate legal status or not.  I say this because Section 15 of the Companies Act, ACT 179 
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requires that the name of a Limited Liability Company ends with the word “limited” to make its true legal status easily ascertainable. The word “ventures” attached to the name of 2nd Defendant does not help the Court in ascertaining this fact.  
That said, the issue that faces this Court at this stage, is whether EXHIBIT A series is proof of the Plaintiff’s assertion that the 1st Defendant, using the 2nd Defendant as a conduit, imported goods of the same or similar nature as those traded in by the Plaintiff, with funds and resources she diverted  from Plaintiff Company.  Proceeding on the assumption that the English translation of EXHIBIT A series is correct, I will concede that EXHIBIT A series reveal frantic efforts by an employee to conceal certain clandestine business dealings from an employer.    
The following excerpts among others from EXHIBIT A series lead me to this conclusion:   
EXHIBIT A1 for instance states “yes, I’m here, I dare not to make any call, my boss is monitoring me whether I’m doing the same business”.  
EXHIBIT A5… “Sister, as you said l also want to try doing business her {SIC} using the advantage I have now”    There is also EXHIBIT A17 which states “I should tell my boss I am quitting the job after the first year before he finds out about my business.”  
This Court is in no doubt at all that the above excerpts from EXHIBIT A series clearly expose an employee, presumably, the 1st Defendant, as being secretly engaged in business that rivalled that of her employer and into which she obviously channeled most of her time and energies whilst she continued to receive a salary from Plaintiff.   As I have already stated, the deficiencies in this exhibit make me unable to conclude with any certainty which statements are actually attributable to the 1st Defendant even assuming without obviously admitting that she was one of the participants in the dialogue.  If the above quoted statements amongst other incriminating ones in EXHIBIT A series were made by her, the question that still needs to be answered, is whether this constitutes evidence of diversion of Plaintiff’s funds by the 1st Defendant.  I could agree with the Plaintiff to the extent that, the evidence in EXHIBIT A series, if established will show up the  1st Defendant as  having  
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diverted Plaintiff’s time, as a resource into  her private business when the same ought to have been devoted to performing her duties as manager at the Anwia NKwanta shop.  However, is this proof of fraudulent diversion of Plaintiff’s funds and goods?  I do not think so. In his testimony on the 14th day of January 2016, Plaintiff’s representative testified as follows:    “A:  1st Defendant was working for me and was my manager at my regional office.  She had access to my computer and knew everything I was doing. She took advantage of my shop and was selling my products at a reduced cost in another shop and this made all customers move to the other shop… I then invited someone to check my records.  
Q: when you say someone what do you mean?  
A:  The products she was selling in the other shop were mine, she inflated the prices and kept the profit for herself.  Then I checked my computer for the records in my shop and realized 1st Defendant was selling my products at a lower rate. “  
What then is the case of the Plaintiff? Is it that the 1st Defendant diverted Plaintiff’s products into her own business where she sold them at a reduced cost so she could solicit Plaintiff’s customers or that she, as manager of Plaintiff’s Anwia Nkwanta shop, inflated the prices of products sold in Plaintiff’s shop in a bid to make illegal profits for herself? In my thinking, it is not clear, from the answers given by Plaintiff’s representative, how the losses complained of arose. Be that as it may, the Plaintiff maintains that the Defendants misappropriated its funds and resources. Plaintiff avers that an internal audit revealed that between the months of May and July 2015, 1st Defendant remitted an amount of about sixty-five thousand Ghana cedis (GH¢65,000.00) to China. It is the Plaintiff’s contention that the said amount was stolen by the 1st Defendant from the coffers of Plaintiff as the 1st Defendant’s salaries were always paid directly into her account in China thereby making it impossible for her to have raised such an amount within this country.  I have taken time to carefully examine EXHIBIT A series and I note that mention is made in EXHIBIT A13 of an amount Sixty-Five Thousand Ghana Cedis (GH¢65,000.00). But there is nothing in the said exhibit which insinuates, even remotely that this amount was stolen from Plaintiff coffers by the 1st Defendant. Curiously, the attachment to EXHIBIT A13 which is supposed to contain the original message talks of Sixty-Five Thousand (65,000.00) coins and not Sixty-Five Thousand Ghana Cedis 
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(GH¢65,000.00). Can it be said that the English version is a true and correct translation of the attached one in Chinese?  The answer is uncertain no matter how one looks at the said exhibit.  This, in my opinion, only serves to further complicate the issues at hand.    
According to Plaintiff, an amount of about Sixty-Five Thousand Ghana Cedis (GH¢65,000.00) was stolen by the 1st Defendant and remitted to China for the purchase and importation of goods similar to those traded in by the Plaintiff..  Now, granting for the purposes of argument, that the 1st Defendant actually transferred the said amount to China for the said purpose, is that in and of itself evidence that the 1st Defendant raised this amount through fraudulent means, to wit by stealing from her employer? Can this Court rule out the possibility of the Defendants having taken a loan? EXHIBITS A6, A9, A19 and A20, in my thinking, suggest attempts at raising monies through various means including   applying for loans. This Court, is nevertheless being invited by Plaintiff, to conclude that the 1st Defendant stole these monies from Plaintiff because she could not have raised the said amount within this country as all her salaries were paid directly into her account in China.  No evidence was led regarding the 1st Defendants monthly income but, the question is, does the fact of the 1st Defendant’s salaries being paid directly into her account in China even if true, warrant such an inference?  To buoy up further, its allegations against the Defendants, Plaintiff tendered in evidence, EXHIBIT B,  an audit report showing a loss of Eighty Thousand, Eight Hundred and Sixty Ghana Cedis (GH¢80,860.00) to Plaintiff Company  I must concede, that even in the absence of direct evidence of fraud or stealing by the 1st Defendant, the cumulative effect of the evidence led, could lead to a definite conclusion that the 1st Defendant is indeed guilty of misappropriation of the funds of Plaintiff.   It is for this reason that I have subjected EXHIBIT B to very meticulous scrutiny.   The said Exhibit, a report issued by SAMUEL ARYEE SERVICES (CHARTERED ACCOUNTANTS &MANAGEMENT CONSULTANTS) is headed REPORT ON INTERNAL AUDIT CONDUCTED FOR KEYUAN MACHINERY LIMITED.   It is the case of the Plaintiff that due to the suspicious conduct of 1st Defendant, it commissioned an internal audit, which revealed a loss of over Eighty Thousand Ghana Cedis (GH¢80,000.00) to the Plaintiff Company. The witness testified that these monies were found to have been misappropriated by 1st Defendant who used same in importing goods from China into this country ultimately for her personal benefit.  I find that the pleadings only disclose an audit having been conducted for the months of May to July, 2015 when a loss of about Sixty-Five Thousand Ghana Cedis (GH¢65,000.00) was 
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uncovered. EXHIBIT B does not specify the said loss of Sixty-Five Thousand Ghana Cedis (GH¢65,000.00) for the said period of May to July 2015 as pleaded but I will surmise that the alleged loss of Eighty Thousand, Eight Hundred and Sixty Ghana Cedis (GH¢80,860.00) stated in EXHIBIT B includes the said amount and covers the said period as it is said to be for the period starting from January to July 2015. As indicated, my examination of the said exhibit has been quite thorough but I find nothing in it connecting the 1st Defendant to the alleged loss of Eighty Thousand, Eight Hundred and Sixty Ghana Cedis (GH¢80,860.00). There is nothing in EXHIBIT B suggesting that it is a report of an internal audit conducted in respect of the Anwia Nkwanta branch of Plaintiff Company or that the said audit related to the books of the 1st Defendant. To my mind, bare evidence of a shortage in the accounts of Plaintiff Company without proof of who actually caused the said shortage does not enable this Court to make a finding of diversion of funds against the 1st Defendant. By the pleadings, the figure of “about Sixty-Five Thousand Ghana Cedis (GH¢65,000.00)” appears to be a close approximation of the amount allegedly misappropriated by the 1st Defendant.  EXHIBIT B however fixes the total loss to Plaintiff Company at Eighty Thousand, Eight Hundred and Sixty Ghana Cedis (GH¢80,860.00).  One wonders who or what swelled the figure up to Eighty Thousand, Eight Hundred and Sixty Ghana Cedis (GH¢80,860.00). One wonders who was responsible for the additional loss of Fifteen Thousand, Eight Hundred and Sixty Ghana Cedis (GH¢15,860.00).   No evidence was led in explanation. Moreover, it is unclear to me from the “findings and conclusions “reached in EXHIBIT B, who exactly is being referred to as “the Manager’ or how the conclusion was reached that “the Manager ……..sold at her own convenience[sic]  prices in other [sic]  to get extra income for herself, hence fraud has set in”.  Indeed reference to “the Manager” in EXHIBIT B could be reference to any other manager of the Plaintiff Company and not necessarily the 1st Defendant.  I am therefore not enthused to attach any weight to the said Exhibit as proof of stealing or fraud against 1st Defendant.   
Having found EXHIBITS A and  B insufficient to prove the allegations leveled against the Defendants, I do not think EXHIBITS C and C1 will make any difference to the position taken by this Court.  But I still consider it worth commenting on certain observations made of the said exhibits. EXHIBITS C and C1 are a combined transport bill of lading tendered to prove that the Defendants imported for sale, goods of the same or similar nature as those traded in by the Plaintiff.  At the risk of overburdening this judgment, I wish to state that EXHIBITS C and C1 were only admitted for their circumstantial value and not to prove the 
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truth of their contents. See Section 165 of the Evidence Act, NRCD 323. The said exhibits appear to be photocopies of an original bill of lading. Plaintiff’s representative testified that he obtained them from the shipping line that shipped in the 1st Defendants goods. No explanation was offered for his failure to produce the original.  There is however something that I find curious about EXHIBIT C. I observe that the top left hand corner of the said exhibit appears obliterated. No explanation was given by the witness for this apparent erasure. I am therefore not persuaded that EXHIBIT C is an accurate reproduction of the original bill of lading as mandated by Section 164 of NRCD 323. This renders the authenticity of the said exhibit rather suspect in my opinion. In any event, I do not consider it necessary dwell unduly on the weight to be attached to this exhibit since it is quite clear from my evaluation so far of the evidence led by Plaintiff that I do not find the Plaintiff”s claims established.   
As already pointed out, declaratory reliefs are not automatically granted in default of defence. Consequently, a Court will not grant a declaratory relief unless a plaintiff leads cogent evidence showing that he is entitled to such relief.   Verity CJ in explaining this legal position in the case of EMEGWARA V NWAIMO  [1953] 14 W.A.CA 347.stated as follows:  
“ It is just as well that it should always be borne in mind that the making of such a declaration is discretionary and in the exercise of the Court’s equitable jurisdiction.  A declaration of title will only be made when the Court is fully assured first as to the precise nature of the title in respect of which the declaration is sought and secondly that there is evidence by which the Court is satisfied that a  title of the nature claimed has been established.”  
The applicable law on the burden imposed on a party to prove what that Party asserts is clearly stated in Section 17 of the Evidence Act, NRCD 323 as follows: Section 17 except as otherwise provided by law:  
a) The burden of producing evidence of a particular fact is on the Party against whom a finding on that fact would be required in the absence of further proof. b) The burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.   
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Thus the SUPREME COURT in the case of OKUDZETO ABLAKWA NO2 V. AG AND ANOTHER emphasized: “… a Party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17(b) which emphasizes on the Party on whom lies the duty to start leading evidence”.  
By Sections 10 and 12 of the Evidence Act, NRCD 323, the standard of proof in civil matters is proof on a preponderance of probabilities.  However, as disclosed by the pleadings, at the heart of the Plaintiff’s claim against the Defendants is an allegation of fraud. Plaintiff therefore bore the rather onerous burden, not only to prove its case but to prove same beyond reasonable doubt. This position is clearly stated in Section 13 of NRCD 323 as follows:  
“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 reasonable doubt”.  
This notwithstanding, I consider it worth stating here, that I do not disregard the real likelihood that the facts and circumstances of this case, could arouse in an objective mind a  reasonable suspicion of misconduct on the part of the 1st Defendant.  The Black’s Law Dictionary, 8th Edition defines suspicion as “the apprehension or imagination of the existence of something wrong based only on inconclusive evidence or possibly even  no evidence.”  
Reasonable suspicion is further defined as “a particularized and objective basis, supported by specific and articulable facts, for suspecting a person of criminal activity.”  It is clear from the above definitions, that suspicion, no matter how grave, cannot amount to proof in law.  The decision to dismiss this action therefore, has not been arrived at without some sympathy for Plaintiff but this Court is only permitted to reach a decision based on the evidence placed before it. The Plaintiff in my opinion, presented a poor case and this Court unfortunately cannot come to its aid.  I cannot however conclude this judgment without questioning the propriety of the Plaintiff’s relief (c) which seeks an order perpetually restraining the Defendant, their agents assigns etc. from engaging in the same business amongst Plaintiff’s customers. The general legal position is that any contract in restraint of trade is, (except in very exceptional cases) against public policy and therefore void. SEE THE CASE OF HERBERT MORRIS V SAXELBY [1916]1 AC 688. There is no 
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evidence before this Court that the 1st Defendant agreed with the Plaintiff as part of her contract of employment not to set up a rival business upon leaving Plaintiff’s employ.  It is however very doubtful, even if such an agreement existed, if this Court would have been empowered to make an order  perpetually (emphasis  mine ) restraining the Defendants from engaging in the same trade among Plaintiff’s customers as such an order  will clearly be unenforceable and consequently void.    In conclusion and for the reasons advanced in this judgment the Plaintiff’s action is hereby dismissed. DECISION Action dismissed      
        (SGD)                     MRS. AKUA SARPOMAA AMOAH               JUSTICE OF THE HIGH COURT   
aey/…   