Papafio v Nikoi and Others (A2/60/21) [2024] GHADC 712 (23 October 2024)

IN THE DISTRICT COURT AT LA HELD ON WEDNESDAY THE 23RD DAY OF OCTOBER, 2024. BEFORE HER WORSHIP ADWOA BENASO ASUMADU-SAKYI, SITTING AS MAGISTRATE SUIT NO: A2/60/21 BEN QUARTEY PAPAFIO NO. 3 PURE WATER ROAD ASHONG, ACCRA SUING PER HIS LAWFUL ATTORNEY EMMANUEL TETTEH PF H/NO. D213/5 AMAMOMO, JAMESTOWN, ACCRA >>> PLAINTIFF VRS. GORDON KOTEY NIKOI ESOKO GHANA LIMITED ACCRA, GHANA >>> DEFENDANT ______________________________________________________________ PARTIES: Plaintiff’s attorney present Defendant present LEGAL REPRESENTATION: Enoch Sebastian Owusu for the Plaintiff Y. A. Affram for the Defendant _______________________________________________________________ JUDGMENT _______________________________________________________________ INTRODUCTION Per an amended Writ of summons the Plaintiff filed this instant suit on 8th of February, 2020 against the Defendant and prayed for the following reliefs; 1. An order compelling the Defendant to pay the sum of Fifty-Three Thousand Seven Hundred and Forty Ghana Cedis (GH¢ 53,740.00) being the outstanding balance owed the Plaintiff by the Defendant. 2. Interest on the above sum of Fifty-Three Thousand Seven Hundred and Forty Ghana Cedis (GH¢ 53,740.00) at the prevailing bank rate from the 28th July, 2021 till the date of final payment. 3. Cost including solicitor’s professional fees. 4. Any other remedy as the Court may consider fit to order. The Defendant filed a Statement of Defence on the 21st of February, 2022 and denied the particulars of the Plaintiff’s claim. After pleadings closed the parties were ordered to file their witness statements on the 22rd of March. 2022. Plaintiff’s attorney filed his witness statement and supplementary witness statement on the orders of the court on the 29th of April, 2022 and 24th of July, 2023 respectively and the Defendant filed his witness statement on the 5th of September, 2022. Hearing commenced on the 24th of October, 2023 and was completed on the 14th of August, 2024. THE BURDEN OF PROOF IN CIVIL SUITS As in all civil suits, the onus of proof first rests on the party whose positive assertions have been denied by his opponent. Depending on the admissions made, the party on whom the burden of proof lies is enjoined by the provisions of sections 10, 11(4), 12 and 14 of the Evidence Act, 1975 (NRCD 323) to lead cogent evidence such that on the totality of the evidence on record, the court will find that party’s version in relation to the rival accounts to be more probable than its non- existence. Indeed, this basic principle of proof in civil suits expounded in Zambrama v. Segbedzie [1991] 2 GLR 221 has been subsequently applied in numerous cases including Takoradi Floor Mills v. Samir Faris [2005- 2006] SCGLR 882; Continental Plastics Limited v. IMC Industries [2009] SCGLR 298 at pages 306 to 307; Abbey v. Antwi [2010] SCGLR 17 at 19. In Ackah v. Pergah Transport Limited and Others [2020] SCGLR 728, Adinyira JSC succinctly summed up the law, at page 736: “It is a basic principle of law of 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… It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that, on all the evidence, a reasonable mind could conclude that the existence of a fact is more reasonable than its non-existence. This is the requirement of the law on evidence under section 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323).” From the above it is clear that the Plaintiff bears the burden of producing evidence and the burden of persuasion on his case which means if he fails to do so the court ought to enter judgment against him. With the above principles in mind, I have set down the following issues down as issues for determination; a. Whether or not there existed an agreement between the Plaintiff and the Defendant for the Defendant to sell the Plaintiff’s maize. b. Whether or not the Defendant was involved in the sale of the Plaintiff’s maize c. Whether or not the maize belongs to the Plaintiff or Mango Tree Farm Limited d. Whether or not Defendant owes the Plaintiff an amount of Fifty- Three Thousand Seven Hundred and Forty Ghana Cedis (GH¢ 53, 740.00). THE EVIDENCE PRESENTED BY THE PLAINTIFF The Plaintiff testified through his attorney Emmanuel Tetteh and stated that around September, 2019 the Defendant was tasked to personally oversee the sale of bags of maize from the Plaintiff’s farm. He went on to state that the Defendant had already performed this duty the previous year and prior to this task the Defendant had provided supervisory role services to the Plaintiff’s farm manager. The Plaintiff’s attorney also stated that at the time the Defendant was engaged, the Plaintiff needed funds for the general operations and management of the farm and the Defendant assured the Plaintiff of a quick sale. He stated that due to the assurance given by the Defendant and the fact that he had already sold maize for him the previously he was confident in entrusting the sale of the maize in the hands of the Defendant. He states that despite the assurances of the Defendant no sale took place in September 2019, until 130 bags were sold in November. The Plaintiff’s attorney further stated that although the Defendant informed the Plaintiff that he would sell a bag for GH¢ 130 he later claimed that he sold 100 bags for GH¢ 90, thus the proceeds of the total of 1030 bags of maize which were sold was GH¢ 129,000.00 and that was what was due to be paid by the Defendant. The Plaintiff’s attorney states that an amount of GH¢ 75,260.00 has been paid but the remaining amount of GH¢ 53,740.00 has not been paid by the Defendant despite several demands. The Plaintiff’s attorney refused to avail himself for accounts to be rendered on the amount outstanding. THE EVIDENCE PRESENTED BY THE DEFENDANT The Defendant testified that he is a senior business advisor of Esoko Ghana Limited and that Esoko Ghana Limited was into linking sellers to buyers and vice versa and not in the business of buying and selling any commodity. He went on to state that the Plaintiff informed him that he was trying to establish a mango farm and that he needed his expertise so he agreed to assist him without agreeing to any formal payment for his services. He also stated that he advised the Plaintiff as to how to maximize his returns on his mango plantation by cultivating maize alongside the mango and he also facilitated the linkage of the Plaintiffs farm to buys of the produce who were engaged in rearing poultry in Bibiani and Bekwai. He stated that the linkage went so well that the maize was sold at a higher price than the going market price at that time. He also stated that in February, 2020 the buyers of the maize requested for the maize to be supplied on credit and he informed the Plaintiff of same. He states that after informing the Plaintiff of the buyers request the Plaintiff excluded him from all transactions and took over all aspects of the sale of the maize himself and even instructed the farm manager never to transport any maize without his express approval. He further states that the Plaintiff negotiated the prices and terms of payment with the buyers and as a result he was shocked when the Plaintiff called to accuse him of selling his maize. He thus decided to investigate and it came out that the supplies that the Plaintiff had arranged with his farm manager were less in weight than it was expected. He finally stated that he did not owe the Plaintiff and that the Plaintiff is not entitled to his claims. I will now discuss the first and second issue together which is; a. Whether or not there existed an agreement between the Plaintiff and the Defendant for the Defendant to sell the Plaintiff’s maize. b. Whether or not the Defendant was involved in the sale of the Plaintiff’s maize. It is settled law that a binding contract is a legally enforceable agreement between parties which is formed through either written or oral agreements or through the conducts of the parties involved. A contract is formed when there is an agreement between parties, supported by consideration, and the parties intend to be legally bound. In order to ascertain the existence of a binding contract, an objective test must be conducted by considering what an objective and reasonable bystander would have understood to be the intention of the parties based on their words and conduct, and not merely the intention of the parties. This test is even preferable where there is no written agreement between the parties, which can easily be referred to, and even where there is, the test is still used to determine whether the agreement reasonably confers contractual obligations on the parties. It must be noted that the alleged contract entered into between the parties was an oral one and this does not invalidate the agreement. See section 11 of the Contract Act, 1960 (Act 25). The courts look for whether or not the parties were at a consensus where there was no written agreement. In the case of IBM World Trade Corporation v. Hasnem Enterprise Limited [2001-2002] 2 GLR 248 the court held as follows; “The rule is that where a contract has to find a contract in correspondence, and not in any one particular document, the entire set of correspondence which passed between the parties must be taken into consideration. In Thomas Hussey vrs John- Payne & Anor. (1879) 4 App. Case 311, Earl Carins, the Lord Chancellor said at p. 316:” “The second requisite in this case he proposes to supply through the medium of letters which passed between the parties and it is one of the first principles applicable to a case of the kind that where you have to find your contract, or your note or your memorandum of the terms of the contract in letter, you must take into consideration the whole of the correspondence which has passed. You must not at one particular time draw a line and say ‘we will look at the letters up to this point and find in them a contract or not, but we will look at nothing beyond’. In order to fairly estimate what was arranged, if anything was agreed between the parties you must look at the whole of that which took place and passed between them.” The Plaintiff alleged that he entered into an agreement with the Defendant for the sale of bags of maize and this was denied by the Defendant. I will reproduce the relevant portions of the witness statement of the Plaintiff’s attorney which was adopted as his evidence in chief; 6. In or around September 2019, the Plaintiff tasked the Defendant personally to oversee the sale of bags of Maize from the Plaintiff’s farm. The Defendant denied this assertion and stated was responsible for sale of Maize on behalf of Plaintiff the previous year. Prior to this task, the Defendant provided supervisory role services to the Plaintiff’s Farm Manager. The Defendant’s testimony was however riddled with inconsistencies as even though the Defendant denied this and stated that the Plaintiff rather asked for his expertise and knowledge with the establishment of a mango farm. He stated that he advised the Plaintiff that he could maximize maize alongside the mangoes which the Plaintiff did. He also stated that he facilitated the linkage of buyers of produce. He then contradicted this testimony by stating that the Plaintiff excluded him from all transactions involving the sale of maize. This is what he said in his witness statement which was adopted as his evidence in chief provided a different set of facts as follows; 14. In February of 2020, the buyers of Plaintiffs maize requested to be supplied on credit which request I passed on to the Plaintiff 15. Surprisingly, the Plaintiff’s reaction was that he immediately excluded me from all transactions involving the sale of maize and decided to take over aspects of the sales himself. 16. Since then the Plaintiff calls the buyers directly and negotiates the supply of maize from his farm with them after which he instructs the truck driver and his farm manager on what to do without any reference to me. The inconsistencies went on during his cross examination on the 23rd of April, 2024 as follows; Q. You testified before the court that you linked buyers to the Plaintiff for the purchase of the maize cultivation on the Plaintiff’s farm. Is that correct? A. Yes Q. You stated in paragraph 13 of your witness statement that the said linkage went very well as the produce was sold at a higher price that the market price. Is that correct? A. Yes. There were 2 different produce that were sold. I played an active role in the first produce, which is what I stated in my witness statement. The subsequent ones they sold, I did not play any active role. Q. I put it to you that it is your case that you were never involved in the sale and purchase of the maize of the Plaintiff. A. Yes. With the subsequent ones, I did not play any active role. Q. You stated in paragraph 15 of your witness statement that he excluded you from all transactions involving the sale and decided to take over himself. Is that correct? A. No. I participated in the first transaction The Plaintiff’s case is that in the year 2019 he engaged the services of the Defendant for the sale of maize and from the answers given above it is clear that there was an oral agreement between the parties for the sale of the Plaintiff’s maize and that the Defendant was very much involved in the sale of the maize. The Defendant also admitted that the Plaintiff confronted him over the reconciliation of accounts in respect of the transactions for the sale of the Plaintiff’s maize, which he was involved. This is what happened during cross examination on the 23rd of April, 2024; Q. In relation to your involvement in the sale of the maize you will agree with me that the Plaintiff confronted you over the amount you were supposed to send to him A. Yes I agree Q. You will agree with me that Plaintiff requested that reconciliation be done as you stated that you have sent all moneys due him. Is that correct? A. Yes Q. You will agree with me that Plaintiff did not agree with your version of reconciliation A. Yes I agree. This is because he knew he had done the wrong thing and wanted to push his inefficiency on me From the above it is clear that the Defendant admitted that he was asked to reconcile accounts which corroborate the case of the Plaintiff that he was actively involved in the sale of the maize. It is more probable that the Defendant was engaged to sell maize as if the opposite was true there would be no need to request for reconciliation. The position of the law is that where the opponent corroborates a party’s case, a court ought to accept the corroborated version. In the case of Manu v. Nsiah [2005- 2006] SCGLR 25, the Supreme Court stated the principle in holding 1 as follows: “It is a well- established rule that where the evidence of a party on a point in a suit is corroborated by witnesses of his opponent, whilst that of his opponent on the same issue stands uncorroborated even by his own witnesses, a court ought not to accept the uncorroborated version in preference to the corroborated one unless for some good and apparent reason the court finds the corroborated version incredible, impossible or unacceptable.” It is trite law that was held that where a matter is admitted proof is dispensed with. See the case of Samuel Okudzeto and Another v. Jake Obetsebi Lamptey and Another [2013-2014] 1 SCGLR 16 It is also trite learning that there cannot be any better proof than an adversary admitting a fact in contention. See the cases of In re Asere Stool; Nikoi Olai Amontai IV (Substituted by) Tafo Amon II v. Akotia Owirsika III (Substituted by) Laryea Ayiku III [2005-2006] SCGLR 637 at 656 and Fynn v. Fynn [2013-2014] SCGLR 727 at 738. It is also clear from the evidence adduced that the Defendant had contact with the buyers and this was the reason they were able to inform him they wanted the maize to be supplied to them on credit basis and he maintained this contact when he conducted an investigation when the Plaintiff demanded for the remaining amount owed. This is what he had to say on the 24th of August, 2024 during his cross examination; Q. You stated in paragraph 21 that you investigated the matter. Can you tell the Court what matter you investigated? A. I investigated the allegation the maize sellers had not paid the Plaintiff Q. So you were still in contact with the said persons who bought the maize. Is that correct A. Yes The Plaintiff also tendered into evidence Exhibit C which is the statement of account of the Plaintiff which details the cheques deposits and ATM cash made by the Defendant. The Plaintiff’s attorney corroborated this fact during his cross examination in the 24th of October, 2023; Q. The Defendant by himself has not come to load any maize from Mango Tree Farm Limited. A. It is not true. The Defendant has made payments and as such he is involved in the selling of the maize. The Plaintiff also tendered into evidence Exhibit B and Exhibit 1 which are copies of the transcript of the WhatsApp chats and the original WhatsApp messages between the parties on the sale of maize by the Defendant to customers, payment of the proceeds into the Plaintiff’s account and a reconciliation of the figures. Although counsel for the Defendant cross examined the Plaintiff’s attorney on Exhibit C and Exhibit 1, a careful perusal of the record of proceedings shows that he failed to discredit the testimony of the Plaintiff’s attorney on this fact. From the discussion above I hereby hold that the Plaintiff’s attorney has been able lead enough credible and cogent evidence to prove that there was an agreement between the Plaintiff and Defendant for the Defendant to sell the Plaintiff’s maize and that the Defendant was involved in the sale of the Plaintiff’s maize. The last issue to be discussed is whether or not the Defendant owes the Plaintiff Fifty-Three Thousand Seven Hundred and Forty Ghana Cedis (GH¢ 53,740.00). I have already concluded that there was an agreement between the parties for the sale of bags of maize and having come to this conclusion it can be concluded that if there is evidence on record that the total proceeds from the sale has not been paid then the Defendant must be ordered to pay same. The Plaintiff’s attorney in paragraph 12 of his witness statement stated a breakdown of the money he received from the Defendant from the sale of the maize. He also attached Exhibit C which is his statement of account detailing the monies the Defendant deposited in his account. He also attached Exhibit B and Exhibit 1 and which are the WhatsApp conversation between the Plaintiff and the Defendant detailing the protest of the Plaintiff on the amount he had received from the Defendant and then requested for reconciliation. This piece of evidence stands unchallenged as the Counsel for Defendant failed to discredit the evidence of the Plaintiff’s attorney in cross examination. Accordingly, I hereby conclude that the Plaintiff has been able to proof that the Defendant owes an amount of Fifty-Three Thousand Seven Hundred and Forty Ghana Cedis (GH¢ 53,740.00). I will finally discuss whether the Defendant should be ordered to pay interest on the amount owed. The learned Judge Brobbey J, in the case of Agyei v. Amegbe [1998-90] held as follows; “…whenever interest is to be charged and paid in respect of money, the charge is based on the supposition that the person to pay the interest has had the use of the payee’s money. If the money is no longer with the person to be charged that interest, the basis for the interest will cease to exist. In other words, interest is not chargeable on non-existing indebtedness. Interest itself is regarded as money earned on money. This is why it is related to the specific amount in the possession of the person to pay the interest…” See the case of IBM World Trade Corporation v. Hansem Enterprise Limited (supra). The amount owed was due in the year 2020 and as such the Defendant has been in possession of same for almost four years the Plaintiff is entitled to be paid interest on the amount owed to mitigate the cost he has incurred. The next issue to be discussed is whether or not the maize belongs to the Plaintiff or Mango Tree Farm Limited This issue stems from questions Counsel for the Defendant asked the Plaintiff’s attorney during cross examination. I have carefully perused the Statement of Defence of the Defendant and it is clear that this issue was not raised by the Defendant in his pleadings and as such same has no foundation. In the case of Hammond v. Odoi [1982-83] 2 GLR 1215 at 1235, the court held as follows: “… 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 of each 0f the contestants. The pleadings bind and circumscribe the parties and place fetters on the evidence that they would lead.” See the case of Adehyeman Industrial Complex v. Ofosu Mensah [2010- 2012] 2 GLR 3. Thus, since parties are bound by their pleadings, they are not allowed to depart from them and raise new issues and since that was what Counsel for Defendant attempted to do during cross examination this Court will not discuss same as that was never in issue. CONCLUSION I hereby enter Judgment in favour of the Plaintiff and make the following orders; a. The Defendant is ordered to pay an amount of Fifty-Three Thousand Seven Hundred and Forty Ghana Cedis (GH¢ 53,740.00). b. The Defendant is ordered to pay interest of the amount of Fifty- Three Thousand Seven Hundred and Forty Ghana Cedis (GH¢ 53,740.00). c. Cost of Ten Thousand Ghana Cedis (GH¢ 10,000.00) is awarded in favour of the Plaintiff. H/W ADWOA BENASO ASUMADU-SAKYI MAGISTRATE SGD