PEPARH VRS GIZ-GERMAN DEVELOPMENT COOPERATION (A2/060/23) [2024] GHADC 22 (15 February 2024)

CORAM: HER WORSHIP AMA ADOMAKO-KWAKYE (MS.), MAGISTRATE, DISTRICT COURT ‘2’, KANESHIE, SITTING AT THE FORMER STOOL LANDS BOUNDARIES SETTLEMENT COMMISSION OFFICES NEAR WORKERS’ COLLEGE, ACCRA ON 15TH FEBRUARY, 2024. SUIT NO. A2/060/23 ERIC PEPARH NO. G 28/1 ASHANTI ROAD, CAPE COAST. :: PLAINTIFF VRS. GIZ-GERMAN DEVELOPMENT COOPERATION HOUSE NO. 7 VOLTA STREET, ACCRA. :: DEFENDANT JUDGMENT INTRODUCTION Per a Writ of Summons issued in this Court on 8th September 2022, the Plaintiff herein made the following claims against the Defendant herein: a. Recovery of the sum of GH¢ 76,334.70; b. Interest thereon from March 2019 till date of final payment; c. Damages for breach of contract; and d. Legal costs. ERIC PEPRAH V. GIZ GERMAN DEVELOPMENT COOPERATION The Plaintiff prayed for the suit to be placed on the undefended cause list and as such attached an Affidavit in Support to the Writ of Summons, together with exhibits being relied on. The Court however did not place the suit on the undefended cause list but maintained same on the general cause list since triable matters could be gleaned from the Affidavits in support and in opposition filed by the Plaintiff and Defendant respectively. It was therefore necessary for a trial to be conducted. At the close of trial, Counsel for both Lawyers filed their respective written addresses on 9 th February2024 and 12th February 2024 respectively, urging on the Court to grant the Plaintiff’s relief and to dismiss same respectively, as the case may be for each side. PLAINTIFF’S CASE It is Plaintiff’s case that he was employed by the Defendant as an Office Administrator in 2008 and made a facilitator in organising Defendant’s training programmes in 2017. He deposed that he was to pre-finance the programmes and be reimbursed afterwards and as such in 2018, he bestowed on Defendant total expenditure he had incurred in organising and facilitating project related workshops and training programmes to the tune of GH¢ 76,334.70. According to Plaintiff, he sent a recorded (IAS/FEDEX) mail to the Defendant through Sandra Benthe containing ten vouchers in respect of the expenses and deposited three vouchers at Defendant’s Wa office. He deposed that on 16th February 2021, Defendant through Sandra Benthe confirmed receipt of the expenses and demanded the amount due him to be credited to his account. Subsequently, on 22nd February 2021, he submitted to Defendant through Dr. Elke Stumpf, the bank particulars into which the reimbursement should be made but the Defendant has failed to reimburse him to date despite all entreaties. DEFENDANT’S CASE ERIC PEPRAH V. GIZ GERMAN DEVELOPMENT COOPERATION It was the Defendant’s case that it was against Defendant’s standard company procedures for an employee to pre-finance any activity to be carried out by the Defendant without prior approval and that the Defendant releases funds from its bank accounts in accordance with project budgets to its finance officers for expenditure in accordance with the said budgets and operational plans. According to the Defendant, a key aspect of Plaintiff’s job during the material time was to receive financial means allocated for the running of MOAP in Wa and disburse them accordingly, in relation to pre-approved activities. Defendant deposed that from Plaintiff’s own showing, he made no out-of-pocket expenses on behalf of Defendant and that the amounts paid were out of MOAP’s bank account and not his personal resources. Defendant averred that it released GH¢1,277,046.00 to Plaintiff from August to December 2018 for administration tasks of the Wa office and it is this amount he disbursed for tasks related to his duties and that considering Plaintiff’s gross salary of GH¢2,739.31 as of August to December 2018, it would have been impossible for him to have pre-financed the Defendant’s projects to a tune of GH¢ 76,334.70 in the space of two months from September to October 2018. It was Defendant’s case that from July to December 2018, Plaintiff exhibited poor work attitude and due to his poor financial record keeping, the MOAP – Wa financial records are in disarray. It was deposed that the Defendant was issued with queries, a warning letter and was also suspended due to his conduct and lapses in work and he resigned with effect from 6th January 2019, and he should not be made to benefit from his wrongdoing. It was further deposed that prior to and upon his resignation, the Plaintiff had never made any claims in respect of the claims he was now making. Defendant averred that Defendant owed Plaintiff no money and that the alleged email correspondence between himself and Sandra Benthe could not be located on the email servers and seems to have been fabricated by him. ERIC PEPRAH V. GIZ GERMAN DEVELOPMENT COOPERATION ISSUE Counsel for Plaintiff in her Written Address raised two issues for determination, viz; i. Whether or not the Plaintiff’s expenditure lists submitted to the Defendant are valid. ii. Whether or not Defendant is indebted to the Plaintiff. Defendant’s Counsel also raised six issues for determination; i. Whether or not the monies expended for the Market Oriented Agriculture Programme (MOAP) in Wa were disbursed by the Defendant. ii. Whether or not the Plaintiff received the monies disbursed by the Defendant for the Market Oriented Agriculture Programme (MOAP) in Wa . iii. Whether or not the Plaintiff complied with the procedure of the Defendant for expending project funds. iv. Whether or not the Defendant confirmed receipt of the Plaintiff’s expenditure list and further requested that the Plaintiff be paid the monies requested. v. Whether or not the purported expenditure lists exhibited by Plaintiff were fabricated. vi. Whether or not the Defendant acknowledged receipt of the vouchers and requested for amount owing to the Plaintiff via email. The Court holds the considered view that all the germane issues arising out of the respective cases of the parties can conveniently be resolved through one main issue which is whether or not any expenses were made by the Plaintiff from his personal resources on behalf of the ERIC PEPRAH V. GIZ GERMAN DEVELOPMENT COOPERATION Defendant for which the Defendant ought to refund to him. This is the crux of the entire suit, as I find it. EVALUATION OF EVIDENCE The position of the law in respect of the burden of proof was duly stated by both Counsel in their respective Written Addresses. It is the duty of a Plaintiff to prove his or her case for a determination to be made in his/her favour. A party who raises issues essential to the success of his/her case assumes the onus of proof and as such a person who alleges, whether a plaintiff or a defendant, assumes the initial burden of producing evidence. It is only when such a person has been successful in producing evidence that the other party will be required to lead rebuttal evidence, if need be. In the case of T. Chandiram v. Tetteh [2018] 120 GMJ 112 @ 147 C. A, Her Ladyship Agnes M. A. Dordzie, J. A (as she then was) noted on the standard of proof in civil cases as follows: “[T]he standard of proof in a civil suit is placed on the ‘balance of probabilities. Section 12 (2) of the Evidence Act defines it as follows: “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence.” Again, in the case of Agbosu v Kotey; In Re Ashalley Botwe Lands [2003-2004] SCGLR 420, His Lordship Brobbey, JSC (Rtd.) noted: “The effect of sections 11(1) and 14 and similar sections in the Evidence Decree 1975 may be described as follows: A litigant who is a Defendant in a civil case does not need to prove anything. The Plaintiff who took the Defendant to court has to prove what he claims he is entitled to from the defendant... At the same time if the court has to make a determination of a fact or of an issue, and that determination depends on the evaluation ERIC PEPRAH V. GIZ GERMAN DEVELOPMENT COOPERATION of facts and evidence the defendant must realize that the determination cannot be made on nothing. If the defendant desires a determination to be made in his favour, then he has a duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour…” The Plaintiff therefore has the responsibility of adducing evidence which is sufficient enough to avoid a ruling against him on the issue before the Court. See also the following cases: Takoradi Flour Mills vs. Samir Faris [2005-2006] SCGLR 882 @ 900 GIHOC Refrigeration & Household vs. Jean Hanna Assi (2005-2006) SCGLR 458 Tagoe v. Accra Brewery [2016] 93 GMJ 103 S. C Deliman Oil v. HFC Bank [2016] 92 GMJ 1 C. A. Baker-Woode v Nana Fitz [2007-2008] SCGLR 879 Ababio v Akwesi III [1994-95] GBR 774 Air Namibia v. Micon Travel [2015] 91 GMJ 173 @ 191 C. A The Plaintiff testified by relying on his witness statement filed on 1 st June 2023. According to him, he was employed by the Defendant in 2008 as an Administrative Officer and was upgraded to a Co-Financing Account Officer in 2017, with his duties including organizing project related workshops and training programmes on Defendant’s behalf. He testified that on many occasions, funds needed for the trainings delayed and as such, the practice for most officers was to pre-finance the programmes, in expectation of refund from Defendant, and he did same in 2018 which amounted to an expenditure of GH¢76,334.70. He gave the breakdown of this expenditure and tendered in evidence Exhibits ‘A’ series, ‘B’, series, ‘C’ series, ‘D’ series, ‘E’ series, ‘F’ series, ‘G’ series, ‘H’ series, ‘J’ series, ‘K’ series, L, M, N, P, Q and S as documents backing his claims. It was Plaintiff’s evidence that he sent a recorded (IAS/FEDEX) mail containing ten vouchers in respect of expenses incurred in programmes organized for and on behalf of Defendant ERIC PEPRAH V. GIZ GERMAN DEVELOPMENT COOPERATION from 13th September 2018 to 19th October 2018 to the Defendant through one Sandra Benthe as per Exhibit ‘P’ and he deposited three vouchers at Defendant’s Wa office. He stated that Sandra Benthe confirmed receipt of the vouchers through an email and he subsequently submitted his bank particulars to Dr. Elke Stumpf for the payments to be made into that account, but Defendant has still refused to reimburse him, thus his claim for the GH¢76,334.70 with interest thereon and legal cost. The Head of Programme of Defendant’s Market Oriented Agriculture Programme (MOAP) in Ghana for the period 1st January 2018 to March 2021, Elke Stumpf, testified on behalf of the Defendant by reliance on her witness statement filed on 9th May 2023. According to her, the Defendant releases funds from its bank accounts in accordance with approved project budgets and operational plans in the day-to-day running of the programme and disburses funds to settle expenditure as part of its internal procedures. She explained that these expenditures however had to be pre-approved in writing and upon receipt of proper documentation, they are settled by the Administrative Officer. She tendered in evidence a copy of the Regulations of Authorized signature as Exhibit ‘1’. She testified that it was obligatory for the expenditure lists to be signed by the issuer of the funds, the recipient of the funds and an officer of the Defendant institution who authorised the expenditures and that for the MOAP programme, the Plaintiff was the recipient whereas the Defendant was the issuer. Her evidence was that the Defendant released an amount of GH¢ 1,277,046.00 to the Plaintiff for the administrative activities of the Wa MOAP office from August to December 2018 and it was from this money, and not his personal resources, that Plaintiff disbursed for tasks related to his duties. She tendered in evidence Exhibit ‘3’ series, which are copies of bank statements for August to December 2018 and Defendant’s financial records for that period towards expenditures in the MOAP Department, Wa. ERIC PEPRAH V. GIZ GERMAN DEVELOPMENT COOPERATION She testified that the Plaintiff could not have pre-financed any cost incurred or made any out-of-pocket expenses due to the procedure for financing projects, the fact that Defendant had issued cheques for funds to be released to Plaintiff to run the MOAP project and also the fact that Plaintiff’s gross salary then was even GH¢ 2,739.31. She stated that the Plaintiff never put in a request for reimbursement of any out-of-pocket expenses at any time during or after his time of employment with the Defendant and that his poor work attitude including his consistent failure to communicate timeously with his superiors and colleagues, his failure to carry out tasks assigned to him, his neglect to provide feedback on outstanding tasks and his failure to keep accurate financial records as recipient of funds for MOAP activities by a claim form as was the procedure requested, resulted in he being issued with three queries, a warning letter and being suspended for five days. Exhibits ‘4’, ‘5’, ‘6’ and ‘7’ were tendered in evidence by her to support her assertions. She stated that the Plaintiff subsequently resigned by a letter dated 11 th December 2018 with the resignation to take effect from 6th January 2019. According to the Defendant’s representative, the Plaintiff’s failure to keep proper documentation had resulted in the financial records for MOAP-Wa being in shambles and most of the funds released to him in respect of the project remains unaccounted for by him. She stated that neither she nor Sandra Benthe ever received any letter or email from Plaintiff in respect of out-of-pocket expenses and that the Plaintiff had rather caused untold hardship to the Defendant. I have painstakingly gone through each exhibit tendered. I find that it is clear from the expenditure lists for September, October and November 2018, which Plaintiff prepared on 6th December 2018, that the various amounts by way of expenditure were paid either from the MOAP Bank Account or MOAP Cashbox. For instance, from Exhibits ‘A’ to ‘K’, the payments were made out of the MOAP Bank account whereas those for Exhibits ‘L’ to ‘N’ ERIC PEPRAH V. GIZ GERMAN DEVELOPMENT COOPERATION were paid from the MOAP Cashbox. This is evident in itself on the said exhibits tendered by the Plaintiff himself. The Plaintiff confirmed this under cross examination: Q: From Exhibit C to L, can you confirm that the same phrase or sentence ‘Amount paid from MOAP Bank Account’ appears on each of them? A: Yes please. Q: Your Exhibit M and N, can you confirm that at the bottom of the table, the sentence that appears is ‘Amount paid from MOAP Bank Cashbox’? A: Yes please it is there. I have an explanation. Fuel and other small consumable items are normally paid from the cash box so for instance if the driver has to buy his own fuel and you prepare such expenditure list, we pay them and take the sheet over. When the driver is not paid, I do not normally take the expenditure sheet because I have not paid. … Q: As Co-Finance Account Officer of the Defendant’s Company, you had access to the MOAP Cashbox and MOAP Bank Account. Is that correct? A: Yes. Q: I put it to you that none of your Exhibit A to N shows on the face of those documents that the monies expended were from your personal pocket. A: As I stated earlier, any money paid from the cash or bank account is entered in the system. These vouchers have not been entered in the system, so it is not the company which paid. … Q: Before a project commences, the project team prepares the budget, correct? A: Yes. ERIC PEPRAH V. GIZ GERMAN DEVELOPMENT COOPERATION Q: Are you the one who prepares the budget? A: Yes I do with the component manager. Q: Look at Exhibit A. What is the date of preparation at the bottom? A: 6 December 2018. Q: Exhibit A1, what is the date on that voucher? A: 20 September 2018. Q: You would agree with me that the date on which Exhibit A was prepared is more than 3 months after the incident. A: Yes it is correct. Q: Look at Exhibit B. What is the date on the expenditure list? A: 6/12/2018. Q: The event in Exhibit B1 is dated 13/9/18, correct? A: Yes. Q: You would agree with me that the expenditure list was prepared 3 months after the event. A: Yes. Q: Same with your Exhibit C. The expenditure list and accompanying voucher are several months apart. Is that correct? A: It is correct. Q: Your Exhibit D to N are all dated 6/12/2018, correct, more than 3 months after each of the events. ERIC PEPRAH V. GIZ GERMAN DEVELOPMENT COOPERATION A: Yes. I received them on 6th and forwarded them. Since these have not been paid, it has not been received so it was the information from Head Office that all documents should be in before the end of December and that time due to some burdens and others, I decided to resign. Because I was leaving I had to surrender this document to the Finance Manager and I had to put the current date as at that time. There was enough evidence on record to show that the Defendant provided its Wa MOAP office with enough funds during the period for which Plaintiff claims to have pre-financed activities of the Defendant. I agree with Counsel for the Plaintiff when she submits that the monies were not paid directly to the Plaintiff, which was even admitted by Defendant’s representative under cross examination. It however does not detract from the fact that the Wa office of MOAP was sent enough monies for its operations and programmes by the Defendant for the period under consideration and the Plaintiff himself also admitted that he had access to the MOAP Cashbox and MOAP Bank Account. As a matter of fact, Exhibit ‘3’ series which comprises copies of bank statements for August to December 2018 and Defendant’s financial records for that period towards expenditures in the MOAP Department, Wa lend credence to the fact that a total amount of GH¢ 1,277,046.00 was transferred to the Wa office for the activities of MOAP. The Plaintiff’s main basis for instituting this action is within a very limited and uncomplicated scope; to seek a reimbursement in respect of monies he alleges to have been paid from his personal resources on behalf of the Defendant. However, none of the exhibits he tendered or his evidence he led either by way of evidence-in-chief or when he was cross examined or the evidence elicited when his Lawyer cross examined the Defendant’s representative, proves to the satisfaction of the Court that his personal money was used to foot the expenses of the Defendant. In fact, his salary he received, which he admitted the ERIC PEPRAH V. GIZ GERMAN DEVELOPMENT COOPERATION amount, can in no way pay those expenses said to have been personally paid for by him from his own pocket. Q: Can you tell the Court what your salary at the time of the MOAP project, that is between September 2018 to October 2018 was? A: GH¢2700. Q: So you would agree with me that your exact salary was GH¢2739.21. A: Yes I agree. The Plaintiff did not prove to the Court that he was into any different form of employment aside his employment with the Defendant, or that he had another source of income, which was capable of making him spend so much on Defendant’s behalf, or that he had quite a substantial sum of money or an inheritance somewhere. The following as happened when he was being cross examined is worth reproducing: Q: You want the Court to believe that with a salary of GH¢2,439 you pre-financed activities to the tune of over GH¢76,000 and only remembered to lay claims 3 months later? A: I presented the vouchers to the head because I was leaving. When I pre-financed or anybody pre-finances, when the money is in, then I pick them and enter and pay the person so that is why it took that time. He was unable to directly answer the question posed to him as to how he was able to pre- finance activities worth over GH¢76,000 with a monthly gross salary of GH¢2,439. It is also quite surprising that the Plaintiff at no point in time during his employment with the Defendant and even when he tendered in his resignation letter, made any demands on the Defendant for any monies, if Plaintiff had indeed made that much expenditure from his personal resources on behalf of the Defendant. The Plaintiff himself from the evidence on record has had some lapses in his work attitude and has not been diligent in his financial ERIC PEPRAH V. GIZ GERMAN DEVELOPMENT COOPERATION management and record keeping responsibilities at the Defendant’s institution in the line of his duty and has had to be queried, warned and suspended. According to the Plaintiff, he received an acknowledgment email from Sandra Benthe in respect of the vouchers he sent to the Defendant for a reimbursement. The said mail as confirmed by the Plaintiff, bears no sender’s email to verify who actually sent it. I must state that the alleged email does not in any way even prove that the Plaintiff has personally pre- financed any activities of the Defendant for which he is entitled to a refund. It is curious as well, how the Plaintiff could have in his personal custody the said vouchers which he alleges to have sent to Sandra Benthe through Exhibit ‘P’ on 11th February 2019, a time when he had resigned from the Defendant’s institution and was not ordinarily expected to have any official documents in his possession since it is customary that all work related materials belonging to an institution are handed over before one exits from an establishment. Plaintiff’s evidence was not compelling enough for the Court to make a determination in his favour. CONCLUSION Having considered the evidence adduced at the trial by the parties herein, the Court finds that the Plaintiff has been unable to discharge the burden of proof on him and accordingly, his claims fail entirely and are dismissed. Cost of GH¢ 5,000.00 is awarded for Defendant against Plaintiff. AMA ADOMAKO-KWAKYE (MS.) MAGISTRATE Counsel Evelyn Joyce Ampah, Esq. holding brief of Kweku Y. Paintsil, Esq. for Plaintiff. ERIC PEPRAH V. GIZ GERMAN DEVELOPMENT COOPERATION Rebecca Quarshie Esq. with Lebene Abla Mattah, Esq. holding brief of Harold Tivah Atuguba, Esq. for Defendant. ERIC PEPRAH V. GIZ GERMAN DEVELOPMENT COOPERATION 14