REPUBLIC VRS GANIWU (A2/37/2023) [2023] GHADC 1150 (18 September 2023)

IN THE DISTRICT COURT HELD AT DAMBAI ON MONDAY 18TH SEPTEMBER, 2023 BEFORE HIS WORSHIP ALHASSAN DRAMANI, ESQ. DISTRICT MAGISTRATE. WISDOM UWUMBORKAN PLAINTIFF SUIT NO. A2/37/2023 VRS MUSTAPHA GANIWU DEFENDANT _____________________________________________________________________ PARTIES PRESENT JUDGEMENT The Plaintiff instituted this action against the Defendant claiming the following reliefs: 1. Recovery of cash the sum of GH¢3,120.00 being balance on the cost of smocks plaintiff supplied to defendant for sale since August, 2021. 2. Interest on the GH¢3,120.00 from 7th August, 2021 till date of final payment. 3. Damages 4. Cost. The Defendant denied liability and counterclaim for GH¢1,500.00 being commission owe him by plaintiff. THE CASE OF THE PLAINTIFF The Plaintiff’s case was that in the year 2021, upon defendant’s request he supplied defendant with thirty seven (37) smocks for sale at a total cost of GH¢8,360.00. According to plaintiff the smocks were sent to defendant in two tranches, the first tranche of 25 smocks which consisted of 15 long sleeves and 10 short sleeves at a unit cost of GH¢240.00 and GH¢200.00 respectively, were delivered to defendant on 7th August, 2021 whilst the second tranche of 12 pieces, consisting of nine (9) long sleeves and three (3) short sleeves were delivered to defendant on 13th August, 2021. According to plaintiff the cost of the first consignment was GH¢5,600.00 whilst the second consignment cost GH¢2,760.00 making a total of GH¢8,360.00. Plaintiff further stated that defendant later returned twenty four (24) pieces of the smock to him and sold thirteen (13) pieces at a total sum of GH¢4,320.00 out of which the defendant has paid only GH¢1,200.00 to him leaving an outstanding balance of GH¢3,120.00. According to plaintiff defendant has refused to pay the balance to him despite several efforts made by him. The Plaintiff did not call any witness and thereafter, closed his case after his evidence. EXHIBITS TENDERED IN EVIDENCE BY PLAINTIFF 1. EXH A1-A13- WhatsApp chats between plaintiff and defendant. 2. EXH B1-B7- Photographs of the smocks with imbedded WhatsApp chats. THE CASE OF THE DEFENDANT In stating his case, the Defendant admitted that he was supplied with smocks by the defendant for sale. According to defendant it was agreed between them that the defendant was entitled to GH¢50.00 as commission on each piece of smock he sold. Defendant said on 7th August, 2021 plaintiff delivered to him a first consignment of 36 pieces of smock comprising 15 long sleeves and 21 short sleeves at unit price of GH¢300.00 and GH¢250.00 respectively. According to defendant the total cost of the first consignment stood at GH¢9,950.00. Defendant further said he sold a quantity of the first consignment leaving 13 pieces i.e. five long sleeves and 8 short sleeves which cost was GH¢3,500.00. Defendant stated that on 13th August, 2021 he received from plaintiff a second consignment of 12 smocks comprising 9 long sleeves and three short sleeves at a total cost of GH¢3,300.00. According to defendant he later sold 8 pieces of the short sleeves at a sum of GH¢1,600.00 and forwarded same together with the remaining 17 pieces of smock to the plaintiff. Defendant added that he received a total of 48 pieces of smock from the plaintiff and have sold 31 and plaintiff is owing him a commission of GH¢1,550.00 on the sales he made. The Defendant did not call any witness and did not also tender any exhibit in evidence. Thereafter, the Defendant closed his case. The legal issues to be determined are: 1. Whether the defendant owe plaintiff an amount of GH¢3,120.00. 2. Whether there was an agreement between plaintiff and defendant for defendant to be paid a commission of GH¢50.00 on each unit of smock sold by defendant. APPLICABLE LAW Section 11 (4) of the evidence Act 1975 (NRCD 323) provides that: “In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its nonexistence.” Again Section 12 of the evidence Act 1975 (NRCD 323) which is on proof by a preponderance of the probability states as follows: “(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) 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. Section 14 of the evidence Act 1975 (NRCD 323) states as follows: “Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting.” The general principle in civil litigation is that the party who in his pleadings or writ raises issues essential to the success of his case assumes the responsibility of proof. In the instant case since the defendant has a counterclaim, he has the same burden as the plaintiff. To give effect to this proposition it was held in the case of Bank of West Africa Ltd v. Ackum [1963] 1 GLR 176-182 that the onus of proof in civil cases depends upon the party who in his pleadings raises an issue essential to the success of his case. (See also Faibi v. State Hotels Corporation [1968] GLR 471-480.) In the consolidated cases of Ricketts & Anor v. Addo & Others AND Ricketts v. Borbor & Others [1975] 2 GLR 158-169, the court stated as follows: “…the burden of persuasion which a plaintiff has to satisfy in every civil case is no more than proof on a balance of probabilities.” EVALUATION OF EVIDENCE AND ANALYSIS I shall now proceed to deal with issue one: Whether the defendant owe plaintiff an amount of GH¢3,120.00. From the evidence so far adduced before this court, it is not in doubt that the Plaintiff and the Defendant were business partners where the Plaintiff supplied Defendant with goods (smocks) on credit. It is also not in doubt that the Plaintiff supplied the Defendant with goods on two separate occasions in the month of August, 2021. However, whilst Plaintiff states that the total number of smocks he supplied to Defendant were 37, Defendant strongly contend that he received a total of 48 smocks. What is also quite certain from the evidence adduced is that the defendant sold some of the goods and returned some to plaintiff. What is however contentious is how many pieces of the smocks were sold, how much money has been paid to plaintiff out of the sales made and how many units of the smocks were sent back to Plaintiff. It is Plaintiff’s case that a total sum of GH¢1,200.00 was paid to him in three installments but defendant vehemently denied this assertion and stated that he sold 31 units and that he has paid all the monies to plaintiff and that plaintiff even owe him commission of GH¢1,550.00 from the said money he paid to plaintiff. So, what evidence did each of the parties produced in this trial in support of their respective positions above stated? The plaintiff exhibited whatsApp chats between he and the defendant which plaintiff says confirms the various payments made to him by defendant. For instance, plaintiff’s exhibit A3 dated 13th and 18th August, 2021 contains the following conversation between plaintiff and defendant. Defendant (Def)-“My big man, I have received the items, well done, we are on. You will hear from me in the afternoon. I salute you Sir. 12 pieces in all, 9 long hands and three short hands. Plaintiff (Plt)-Why are you doing that please? You are really showing early signs. Remember I mentioned these two key words (Honesty and Reliability) to you and these are powerful elements everyone must watch out for. They move together.” Again, on the exhibit supra, the conversation below between plaintiff and defendant took place. Plt-“Good afternoon bro. I acknowledge receipt of GH¢500.00 only from your Momo account out of the GH¢8,000.00 you are supposed to give me. So now the outstanding amount to be received is GH¢7,500.00 thanks. Def-Expect tomorrow Plt-Noted Boss. Again on 17th and 18th September, an interesting whatsApp chat took place between plaintiff and defendant and for the sake of clarity I shall reproduce same here as captured in plaintiff’s exhibits “A7” and “A8” Plt-“Good morning. I hope you good. You received a total of 37 pieces which comprised of 24 pieces of those with sleeves and 13 pieces of the sleeveless. So, you have returned 18 pieces out of 37. It means you have sold 13 pieces of those with sleeves at unit cost of GH¢240.00. So that will amount to GH¢3,120.00. For the sleeveless you sold 6 pieces and the unit price is GH¢200.00 and that will also amount to GH¢1,200.00. So, the two components together you got GH¢4,320.00. And you have paid GH¢1000.00 only so the balance you have to give me is GH¢3,320.00”. It is significant to state that the defendant failed to immediately respond to the above stated message, so on 18th September, the plaintiff who appeared livid return with a further message to wit: Plt-“Good afternoon Boss, Please I need the money. So kindly send it to 0558652097. The way you are delaying in sending the money I am not happy. A business is not run like that. Def-“Ok boss be expecting. Defendant in his pleading and evidence has argued that he has received a total of 48 pieces of smocks, sold 31 and returned 17 pieces to plaintiff. He also stated at paragraph 9 of his statement of defence that he has forwarded GH¢1,600.00 to plaintiff from the sales made. However, from the chat on exhibits “A7” and “A8” supra, it is obvious that the defendant had admitted that he has received a total of 37 pieces of smock, sold 19, returned 18, realized a total sum of GH¢4,320.00 and paid only GH¢1000.00 to plaintiff with an outstanding balance of GH¢3,320.00 to be paid. It is also obvious from defendant’s response in exhibit “A8”- “Ok boss be expecting” that he had no disagreement or problem whatsoever with the calculations and summary of their transactions and dealings as expressed by the plaintiff in the said chat, if defendant had any issues or disagreement with the above statement made by plaintiff he would have clearly stated so. However, that was never done. In my candid view, defendant’s present argument that he received 48 pieces of smock, sold 31 and returned 17 pieces to plaintiff with cash of GH¢1,600.00 is nothing but a weak afterthought and complete falsehood. Further in plaintiff’s exhibit “A12” dated 9th June, 2022 defendant sent plaintiff an amount of GH¢200.00 which plaintiff acknowledged receipt but with reservation and protest because to him it wasn’t much with regards to the outstanding debt owed him by defendant. The GH¢200.00 captured in exhibit “A12” and the earlier GH¢1000.00 captured in exhibits “A7 and A8” therefore suggest that plaintiff have acknowledged receipt of a total sum of GH¢1,200.00 from defendant. The defendant in his evidence stated that apart from the GH¢1,600.00 he forwarded to defendant he also made payments on two different occasions to plaintiff at his house and also at the Endless Hotel, Dambai. Below are excerpts of what transpired on 12th July, 2023 when the defendant came under cross examination by plaintiff. Q. Do you still stand by your case that you sold 31 pieces of smock. A. Yes. Q. How much was realised from the 31 smocks you sold. A. That can be best answered by you because the 31 pieces were made up of both short and long sleeves. Q. I put it to you that you know the unit cost of the items so you should know the total amount realised from the 31 pieces you claim to have sold. A. Out of the 31 sold 17 were short sleeves amounting to GH¢4,250 and 13 were long sleeves also amounting to GH¢3,900.00. So, the total amount realised from the 31 pieces I sold was GH¢8,150.00 Q. So have you sent the above money to me. A. Yes Q. These money was sent to me via Momo not so. A. Part was sent to you through Momo whilst the other part was also given to you physically at the Endless Hotel Dambai and the other part in my house. Q. So how much did you give to me at the Endless Hotel. A. I cannot tell. Q. How much was given to me at your house. A. I don’t remember the amount. Q. How much was given to me through Momo. A. In fact, I cannot remember because I lost my phone. So, I couldn’t retrieve that information. But I know that I sent you a total of GH¢8,150.00 on the 31 pieces I sold. The above encounter clearly, not only exposed the deep-seated dishonesty of the defendant but also exposed his bad fate. It is disgusting that the defendant who claims to be a teacher will easily forget simple figures as in the amounts he claimed to have paid to the plaintiff at the hotel and in his house yet can well recollect with precision the total sum he paid to the plaintiff. Equally the defendant who claim in his evidence to have forwarded an amount of GH¢1,600.00 to plaintiff through Momo has now under cross examination suddenly lost his memory and can no longer remember how much he sent to the plaintiff through Momo. Indeed, realizing that he has been nailed by the plaintiff he went further to lie that he has lost his phone and so is not able to retrieve his mobile money transaction over the period. This, I find not only funny but intriguing because mobile money transactions are easily traceable from ones Telecommunication Service providers whether one’s phone is missing or not. If plaintiff indeed sent an amount of GH¢1,600.00 through mobile money to plaintiff, he could have easily applied for and obtained his statement from his service provider. I am therefore unable to agree with defendant on this feeble excuse of a missing phone. It is a matter of regret and of course shameful that the defendant who described the plaintiff as his comrade is now scheming so hard to not only deny but to disposes the plaintiff of his investment. To succeed, the defendant had the duty to produce sufficient evidence to convince the court that he indeed paid some money to plaintiff. But in the respectful view of this court the defendant has failed to discharge this burden. In the case of Duah v. Yorkwa [1993-94] 1 GLR 217-241 per holding 5, the Court of Appeal held that: “Whenever there was a written document and oral evidence in respect of a transaction, the court would consider both the oral and the documentary evidence and often lean favourably towards the documentary evidence, especially where the documentary evidence was found to be authentic and the oral evidence conflicting……”. The defendant in this case never objected to the tendering of the whatsApp chats between he and the plaintiff. I find that the whatsApp chats are authentic as there were no alterations or cancellations in them. Accordingly, the court would lean favourably towards the documentary evidence in plaintiff’s exhibits “A and B” series which supported the case of the plaintiff that an amount of GH¢1,200.00 only was paid to him by the defendant after the sale of the goods. The Defendant I find did not adduce any credible facts or evidence to displace the prima facie proof made by the Plaintiff. When a court is called upon to resolve conflicting versions of facts, the duty of the court is distilled in a crucial question articulated by Wood C. J. (as she then was) in the case of Sarkodie v. FKA Co Ltd [2009] SCGLR 65 @ page 69 in these words: ‘The main issue for the court to determine is simply that, on a preponderance of the probabilities, whose story is more probable than not?’ That question put differently is – whose evidence had more weight and credibility? Thus, on the basis of the evidence before me, I find the plaintiff’s story to be more probable, more believable, much more weightier and more credible than that of the defendant’s story which is grounded on a weak foundation and riddled with inconsistencies and naked lies. From the totality of the evidence adduced before this court, I find that the plaintiff supplied a total of 37 pieces of smocks to defendant to be sold at a unit cost of GH¢240.00 and GH¢200.00 for the long and short sleeves respectively. I further find and hereby hold that defendant sold 19 pieces of the smock and returned 18 to plaintiff, realised GH¢4,320.00 and paid to plaintiff a total sum of GH¢1,200.00 with an outstanding debt of GH¢3,120 to be paid Issue two: Whether there was an agreement between plaintiff and defendant for defendant to be paid commission of GH¢50.00 on each unit of smock sold by defendant. The defendant’s case was that it was agreed between he and plaintiff that defendant was entitled to commission of GH¢50.00 on every unit of smock sold and having sold 31 smocks out of the 48 supplied to him by plaintiff he was entitled to a cumulative commission of GH¢1,550.00. It is significant to state that I have already found in issue one supra that the plaintiff supplied 37 smocks to defendant and defendant has sold 19 out of the 37. The defendant having alleged that he is owed commission by plaintiff he has placed on himself a responsibility to prove same with cogent evidence. Unfortunately, the defendant has not produced a single piece of evidence to back this wild claim. What he did in his evidence was just a repetition of his pleadings. In the case of Zabrama v. Segbedzi (1991) 2 GLR 221-247 at page 239; the court held 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 production of documents, description of things references to other facts, incidents or circumstances. Where 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 by his witnesses. He proves it by producing evidence of other facts and circumstances from which the court can be satisfied that what he avers is true.” From the evidence on record, I fail to see how defendant who was entitled to commission, will, after the sales turn in all the money including his own commission to plaintiff and afterwards chase the plaintiff for same commission. In my respectful view, since it was the defendant who made the sales, if it was indeed true, that he was entitled to commission, the logical and natural thing for him to have done was to deduct such commission before forwarding the rest of the money to plaintiff and not the other way round. Having critically examined the evidence on record, there is no doubt left in my mind that there was no agreement between the parties for defendant to be paid commission. In the circumstances, defendant’s counterclaim is hereby dismissed. In the case African Automobile Ltd. v. Tema Oil Refinery [2012] 39 MLRG 1 SC @ page 33 per Dotse JSC, the Supreme Court stated that: “Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either as arising naturally, i.e. according to the natural course of things, from such breach of contract itself or such as may be reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract as the probable result of the breach”. Also, in the case of Delmas Agency Ghana Limited v. Food Distributors International Limited [2007-2008] SCGLR, 748, the Supreme Court held that an award of general damages is such as the law would presume to be the natural or probable consequence of the defendant’s act. It arises by inference of the law and therefore need not be proved by evidence. The law implies general damages in every infringement of an absolute right. The defendant in the instant case having failed to pay to plaintiff all the money realised from the sale of the smocks delivered to him since 2021, has breached the agreement between he and plaintiff. It is therefore fair to grant plaintiff some general damages for the breach suffered. From the foregoing, judgment is accordingly entered in favour of the plaintiff as follows: a) Defendant is ordered to pay to plaintiff the sum of GH¢3,120.00 being the outstanding balance of the 37 smocks plaintiff supplied to defendant in August, 2021. b) Plaintiff is awarded GH¢1,500.00 as general damages for breach of contract. c) Defendant is to pay interest on the GH¢3,120.00 at the commercial rate from September, 2021 till date of final payment. I assess cost of this suit at GH¢2,500.00 in favour plaintiff against defendant. SGD H/W ALHASSAN DRAMANI DISTRICT MAGISTRATE 18TH SEPTEMBER, 2023.