Abdulai Vrs Ruhaima [2023] GHADC 486 (16 July 2023)

IN THE DISTRICT COURT 2, TAMALE HELD ON THURSDAY 6TH JULY, 2023 BEFORE HIS WORSHIP D. ANNAN ESQ. BETWEEN SUIT NO. A2/37/23 RASHIDA ABDULAI - PLAINTIFF AND ALHASSAN RUHAIMA - DEFENDANT JUDGMENT INTRODUCTION 1. This judgment relates to contract, recovery of money. 2. The parties herein are businesswomen who trade in non-alcoholic drinks and water. Both are resident in Tamale. On 19th January, 2023 the plaintiff took out this action against the defendant for the following reliefs: “a. An order for the recovery of GHS14,500.00 being amount due and owing by defendant when she bought non-alcoholic drinks and purified water - 1 - from plaintiff since April 2021 but refused, failed or neglected to pay in spite of continuous demands. b. Interest on the said sum at the prevailing commercial bank rate from April 2021 till date of judgment. c. Costs.” 3. The defendant on 2nd February, 2023 pleaded liable-in-part to plaintiff’s claim. Defendant indicated that the debt rather stood at GHS4,051.00. This court then granted plaintiff judgment on admission for the recovery of GHS4,051.00 and the outstanding amount of GHS10,449.00 to be determined at trial. Parties were, therefore, ordered to file their respective witness statements in respect of the outstanding debt. The case of either party is detailed below. PLAINTIFF’S CASE 4. Plaintiff’s case is that in April 2021, the defendant approached her for a credit sale. As a result, she gave defendant goods worth GHS40,600.00 which defendant was expected to pay within two weeks. Plaintiff contended that parties agreed to isolate and destroy in the presence of each other invoices as and when defendant pays for any invoice. She added defendant failed to pay for the goods as agreed, but resorted to instalment payments to which as at July 2022, only GHS26,100.00 had been paid leaving the balance of GHS14,500.00. Hence, this present action. 5. In support of her claim, plaintiff tendered in evidence: Exhibit A1-A12 – Copies of Invoices for supply of goods. Exhibit B – An extract of Plaintiff’s Sales Record Book. DEFENDANT’S CASE - 2 - 6. In her evidence-in-chief, defendant contended that the debt as at the time plaintiff filed this case stood at GHS4,051.00. According to her, she took goods from the plaintiff on credit worth the GHS40,600.00 with the agreement that on payment the invoices will be destroyed/torn. She added that if a payment was made and it can cater for one invoice and half of another, then plaintiff would tear the fully paid one and the half payment would be written on the yet to be paid invoice. She averred that as at 9th April, 2022 plaintiff had taken money for other invoices and wrote the balance of GHS2,561.00 on Exhibit 1, an invoice that was yet to be paid. Subsequently on 30th April, 2022 plaintiff supplied her with bottle water worth GHS1,400.00 bringing the debt to GHS4,051.00 per Exhibit 2. 7. Regarding payments, defendant stated that on 11th July, 2022 she paid GHS6,000.00 to offset the balance on the old invoices, the invoices were torn and a balance of GHS88.00 was outstanding. On 12th July, 2022 she paid another GHS10,000.00 to the plaintiff to offset invoices dated 29th April and 1st May, 2022. The said invoices were marked as Exhibits 3 and 4, respectively. She maintained that as at the time plaintiff filed this case the debt stood at GHS4,051 but not GHS14,500.00 as being claimed. 8. Defendant also stated that she changed her mind regarding the tearing of invoices to avoid a situation like this. ISSUES FOR DETERMINATION 9. The only issue borne out of the facts is whether or not the defendant’s debt stood at GHS4,051.00 or GHS14,500.00 at the time this suit was filed? BURDEN OF PROOF - 3 - 10. It is essential to note that in civil cases, the general rule is that the party who in his pleadings or his writ raises issues essential to the success of his case assumes the onus of proof on the balance of probabilities. See the cases of Faibi v State Hotels Corporation [1968] GLR 471 and In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 420. The Evidence Act, 1975 (NRCD 323) uses the expression “burden of persuasion” and in section 14 that expression has been defined as relating to, “…each fact the existence or non-existence of which is essential to the claim or defence he is asserting.” See also ss. 11(4) and 12(1) & (2) of NRCD 323. 11. It is when the claimant has established an assertion on the preponderance of probabilities that the burden shifts onto the other party, failing which an unfavourable ruling will be made against him, see s. 14 of NRCD 323 and the case of Ababio v Akwasi III [1995-1996] GBR 774. ANALYSIS OF THE ISSUES 12. The only issue to be determined is whether or not the defendant’s debt stood at GHS4,051.00 or GHS14,500.00 at the time this suit was filed? As earlier pointed out, he who asserts must prove. Now, with regard to proof of one’s claim or allegation, the Supreme Court in the case Okudzeto Ablakwa (No. 2) v. Attorney-General & Obetsebi-Lamptey (No. 2) [2012] 2 SCGLR 845 at page 867 held as follows: “... What this rule literally means is that if a person 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.” - 4 - 13. Let me also rehash what was stated in Majolagbe v. Larbi [1959] GLR 190 regarding proof of an allegation. The learned judge, Ollenu J. (as he then was) stated at page 192 that, “where a party makes an averment capable of proof in some positive way…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”. See also the case of Klah v. Phoenix Insurance Company Limited [2012] 2 SCGLR 1139. 14. The law is also that the trial court has to decide which set of facts or whose version of the facts or which party should be believed or disbelieved, i.e. which of the varying or conflicting versions of the party’s stories, facts or evidence is credible, especially where it is an oath against oath. see Ntim v Essien [2001-2002] SCGLR 451. 15. Based on the above, the legal burden to establish the defendant’s debt falls on the plaintiff, more particularly where the defendant has disputed plaintiff’s claim, see Okudzeto Ablakwa (No. 2) v. Attorney-General & Obetsebi-Lamptey (No. 2) (supra). Failing which, an unfavourable ruling shall be entered against her. Where plaintiff succeeds, the burden shifts to the defendant to establish that the debt stands at GHS4,051.00 at the time of this case was filed, but not GHS14,500.00 as contended by the plaintiff, see Ababio v Akwasi III (supra). - 5 - 16. From the evidence, plaintiff tendered Exhibits A1 to A12 which totaled GHS40,600.00. For emphasis, the below table shows the respective invoices. Invoice Date Amount (GHS) Exhibit A 30/3/22 Exhibit A1 1/05/22 Exhibit A2 Exhibit A3 2/5/22 2/5/22 Exhibit A4 30/4/22 Exhibit A5 29/4/22 Exhibit A6 28/4/22 Exhibit A7 11/4/22 Exhibit A8 9/4/22 Exhibit A9 31/03/22 Exhibit A10 31/3/22 Exhibit A11 30/3/22 Exhibit A12 3/3/22 2,550.00 4,688.00 5,935.00 9,035.00 1,400.00 5,400.00 900.00 1,950.00 2,536.00 850.00 336.00 1,395.00 3,625.00 Total 40,600.00 17. Plaintiff added that anytime defendant paid, she would destroy the respective invoice of the defendant, but kept records of same in her sales book, Exhibit B. Also, when defendant was under cross-examination, below is an extract of what ensued: “Q: You are familiar with the various items that were sold to you on credit per paragraph 4 of plaintiff’s witness statement? A: Yes - 6 - … Q: You agree with me that the credit transactions for which we are in court were paid for in piecemeal to the plaintiff? A: Yes Q: And as at July 2022, before this action you had made a total payment of GHS26,100.00? A: I have paid more than that. Q: Do you have anything before this court that you have paid beyond GHS26,100.00 to plaintiff? A: No. Q: I am suggesting to you that you only made the payment of GHS26,100.00 as at July, 2022. A: That is not true. …. Q: You further paid an amount of GHS500.00 in court to the plaintiff? A: That is so. Q: So you agree with me that the balance of GHS14,000.00 is still outstanding and yet to be paid by you to the plaintiff? - 7 - A: I do not agree. Q: Have you applied your mind to copies of invoices that have been exhibited to plaintiff’s witness statement? A: I saw those invoice but I am not aware of it. Q: I am suggesting to you that they were filed in this court on 3/3/23 and served on you lawyer? A: Plaintiff showed those documents to me but I told her that it is something that I am not aware of. Q: I am suggesting to you that you are merely shifting the goal post to deceive this court? A: That is not true. Q: I am further suggesting to you that for your own convenience, you have elected to exhibit those invoices exhibiting credit balances between the two of you? A: The documents I have are the documents I submitted to this court. Q: On 21/2/23 together with those invoices you filed your witness statement? - 8 - A: That is so. Q: In your Exhibit 1, out of desperation to outwit the plaintiff you made some annotation at her blind side? A: I am on oath to say the truth. The handwriting is that of plaintiff. Q: I am suggesting to you that if it were the plaintiff’s handwriting, same would have been found on plaintiff’s Exhibit A8? A: The reason why it is not found on Exhibit A8 is that plaintiff came and took some monies, issued invoices and destroyed some invoices and the invoices that plaintiff destroyed is what is found on Exhibit A8. Q: I am suggesting to you that your answer is an impossibility? A: That is so.” 18. Defendant on her paid argued that debt as at 9/4/22 was GHS2,651.00. Later, defendant took goods of GHS1,400.00 on 30/4/22, bringing the debt to GHS4,051.00. Defendant averred that after 1/5/22 plaintiff ceased transacting with her. Below is also an extract of what ensued when plaintiff was under cross-examination: “Q: On the face of the document AR (later marked as Exhibit 1), your indicated that your total debt as at that date i.e. 9/4/22 was GHS2,651.00? A: No. - 9 - Q: This was the defendant’s total indebtedness to you from all your previous dealings with the defendant as at that date? A: No. I have never indicated that she owed me that amount. Q: And from the 9/4/22, the defendant only owed you GHS2.651.00? A: No. She owes me GHS14,000.00 Q: You also agree with me that from 1/5/22 you never did business with the defendant? A: No. Q: When was the last time you transacted business with the defendant? A: I cannot remember. However, all I know is before we ended business relations, the amount defendant owed was GHS14,000.00 and we have never argued on how much she owed me. Q: You agree with me that after May when you ceased doing business with the defendant, you received an amount of GHS6,000.00 from defendant? A: Yes. Q: You also agree with me that after the Eid Fitr (around July), you received GHS10,000.000 from the defendant? - 10 - A: Yes. That never brought the balance between us to GHS4,000.00, it brought it to GHS14,500.00. Q: Look at Exhibits A1 and A5, you agree with me that these monies were issued after 9/4/22? A: Yes. Q: Make an addition of these two figures, tell the court what you got? A: GHS10,088.00 Q: I am suggesting to you that that was what the defendant paid for with the GHS10,000.00 you received from her in July. A: No. I received the GHS10,000.000 from her and that never brought our balance to GHS88.00. Q: I am putting it to you that defendant never owed you any GHS14,500.00 as at the date of issue of this writ? A: No. Q: Take a look at exhibits of defendant marked AR and AR1 (later marked as Exhibit 1 and Exhibit 2, respectively), they are also invoices from your business enterprise, not so? - 11 - A: That is so. Q: From AR, the figure at the bottom GHS2,651.00 and that of GHS1,400.00 on AR1 which corresponds with your own Exhibit A4, what is the total? A: GHS4,051.00 Q: I am suggesting to you that that was the figure the defendant owed you before the issue of this writ? A: No. Q: I am suggesting to you that any outstanding figure on any invoice prior to 9/4/22 were indicated on AR of the defendant’s? A: No.” 19. Regarding the tearing of invoices, below is what ensued when plaintiff was under cross-examination: “Q: So you agree with me that you have torn invoices she has paid for in her presence? A: Yes. But that was done with the duplicate I had and in her presence. Subsequently, she called for all the invoices and we reconciled with the duplicate I had and defendant confirmed that the duplicate against the originals were accurate. - 12 - Q: I am suggesting to you that what you have just said is an afterthought because you usually destroy her copy leaving yours intact? A: No. Everything was done in her presence. Q: Take a look at document AR (Exhibit 1), it corresponds with Exhibit A8, is that an invoice from your outfit? A: Yes. Q: Is the handwriting on it yours? A: I cannot remember ever writing this. Q: I am suggesting to you that that very day you miscalculated the value, instead of GHS2,530.00 you entered GHS2,536.00? A: That is a calculation error on this very page. Q: And in that case, you attempted to correct it on the face of the invoice? A: No. Q: I am suggesting to you that you brought the difference of a previous invoice after some payments were made to you on the said date onto this very invoice? A: I did not bring any balance on any invoice. - 13 - Q: And because this was her original copy, you could not have same duplicated on your Exhibit A8? A: No. If that had happened it would have appeared on the duplicate I have because I do everything with her transparently, in her presence.” 20. From the above, I find evidence of the plaintiff more credible than that of the defendant, see Ntim v Essien (supra). Reasons are that whereas plaintiff was able to establish per Exhibit A series the total debt of GHS40,600.00 as well as acknowledge the payment of GHS26,100.00 by the defendant, the defendant on her part failed to provide sufficient evidence in proof that she had paid more than the GHS26,100.00 and that only GHS4,051.00 was outstanding. Regarding Exhibits A8 and 1, there are similar, save that there are annotations or other writings on Exhibit 1. The defendant disputed the other writings on Exhibit 1. I find from Exhibit A series that no extra writing was made on either of them. Assuming without admitting that the extra writings were made by the plaintiff on Exhibit 1, it still did not mean that that was the only outstanding invoice. Exhibits A8 and 1 are dated 9/4/22. There are other invoices that came thereafter, see Exhibits A1, A2, A3, A4, A5, A6 and A7. These invoices (Exhibits A1-A7) sum up to GHS27,358.00. With this, the payments made by the defendant would not have cleared all the outstanding invoices. Further, there are no invoices to which a balance was brought forward. The alleged balance of GHS88.00 never reflected on any invoice as claimed by the defendant. It is also surprising that the very invoice that defendant claimed was destroyed/torn, it is the same invoice that has surfaced as Exhibit 1. In sum, I find that plaintiff has proved her case on the balance of probabilities and I so hold, see Majolagbe v. Larbi (supra). - 14 - 21. Before I conclude, I take note of the fact that the defendant has paid in total GHS1,551.00 to the plaintiff. I also note that Exhibit A8 or 1 should have read GHS2,530.00 instead of GHS2,536.00. Hence, the outstanding debt will be less GHS6.00, thus the debt stands at GHS12,943.00. 22. Finally, regarding the interest rate claimed by the plaintiff, I note that not all the invoices accrued on April, 2021. From Exhibit A series, the last date parties transacted was on 2/5/22. Accordingly, interest rate shall apply at the prevailing bank rate effective 2/5/22 till date of final payment. CONCLUSION 23. In effect, I hereby enter judgment in favour of the plaintiff against the defendant as follows: a. Recovery of GHS12,943.00 being amount outstanding. b. Interest on the above amount at the prevailing commercial bank rate from 2nd May, 2022 till date of final payment. c. Costs of GHS3,000.00 is awarded in favour of the plaintiff. H/W D. ANNAN ESQ. [MAGISTRATE] ASURO NAPARI ESQ. FOR THE PLAINTIFF. SYLVESTER ISANG ESQ. WITH SAMPSON B. LAMBONG ESQ. FOR THE DEFENDANT References: 1. ss. 11(4), 12(1) & (2), 14 of the Evidence Act, 1975 (NRCD 323) - 15 - 2. Faibi v State Hotels Corporation [1968] GLR 471 3. In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 4. Ababio v Akwasi III [1995-1996] GBR 774 5. Okudzeto Ablakwa (No. 2) v. Attorney-General & Obetsebi-Lamptey (No. 2) [2012] 2 SCGLR 845 at page 867 6. Majolagbe v. Larbi [1959] GLR 190 7. Klah v. Phoenix Insurance Company Limited [2012] 2 SCGLR 1139 8. Ntim v Essien [2001-2002] SCGLR 451 - 16 -