Cirrus Oil Services Ltd Vrs Rich Oil Company Ltd [2023] GHAHC 44 (23 January 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE (GENERAL JURISDICTION COURT 5) HELD IN ACCRA ON MONDAY THE 23RD DAY OF JANUARY, 2023 BEFORE HIS LORDSHIP JUSTICE WILLIAM BOAMPONG ESQ., HIGH COURT JUDGE SUIT NO: GJ/ 1351/18 CIRRUS OIL SERVICES LIMITED === PLAINTIFF NO. 219 WEST AIRPORT STREET SANKOFA HOUSE AIRPORT – ACCRA VRS RICH OIL COMPANY LIMITED === DEFENDANT ACHIMOTA CHRISTIAN VILLAGE KESSEMAN J U D G M E N T S The Plaintiff caused to be issued a Writ of Summons against the Defendant claiming as follows:- 1. An Order for the recovery of the sum of Eight Hundred and Twenty-Two Thousand, Nine Hundred and Fifty Ghana Cedis and Fifty Three Pesewas (GH¢822,950.53). 2. Interest on above mentioned amount from September 2016 till the date of final payment. 3. Cost including fees assessed at 5% of the total amount outstanding. The Defendant upon receipt of the Plaintiff’s Writ of Summons refused to enter appearance. The Plaintiff therefore applied for and obtained Judgment in Default of Appearance on the 26th October, 2018. When the Plaintiff began the execution processes of the said Judgment the Defendant applied to the Court and the said default judgment was set aside to enable the Defendant to contest the quantum of its indebtedness to the Plaintiff. The Defendant pursuant to the Order setting aside the Default Judgment filed a Statement of Defence and later an Amended Statement of Defence and a Counter Claim. The Court took the Application of Directions and directed the parties to file their respective Witness Statement for a Case Management Conference to be taken. The Defendant however refused to comply with the orders of the Court to file its Witness Statement. The Court therefore invoked 32 rule 7 sub rule 3 (5) of C. I. 47 and struck out the Defendants Defence and the Defendants counter- claim. The Witness Statement filed by the Plaintiff was adopted for the trial. The Court ordered the Plaintiff to serve the Defendant with a Hearing Notice for the Suit to Commerce. The Plaintiff duly served the Defendant with the Hearing Notice but the Defendant refused to attend the trial. The Court there commenced with the trial. At the trial, the Plaintiff gave evidence per its Witness Statement. In its Witness Statement, the Plaintiff gave evidence that it is a limited liability company registered under the law of Ghana and engaged in the business of bulk oil storage and distribution. The Defendant is also a registered limited liability Company engaged in the business of oil marketing. The Plaintiff supplied to the Defendant various quantities of petroleum products on or about 2015 by virtue of which the Defendant came to accrue in outstanding debt of Three Billion, Six Hundred and Forty Seven Thousand and Fifty Ghana Cedi, Fifty Three Pesewas (GH¢3,647,050.53) due and payable to the Plaintiff as of March 11, 2015. A payment plan was agreed upon between the parties on or about 20th April, 2015 by which the Defendant agreed to defray the debt by making minimum payments of Three Hundred Thousand Ghana Cedis (GH¢300,000.00) per month from April 2015. The Defendant however defaulted in keeping with the terms of the payment plan and was able to make a few payment which derogated from the payment plan the Defendant had proposed. As a result Two Billion, Nine Hundred and Forty Seven Thousand, Nine Hundred and Fifty Ghana Cedis, Fifty Three Pesewas (GH¢2,947,950.53) remain outstanding and the Defendant on or about the 16th November 2015 issued two post-dated cheques valued at Seven Hundred Thousand Ghana Cedis (GH¢700,000.00) which failed to receive value when presented. It was further to this that the Plaintiff advised the Defendant to send a payment plan in respect of the GH¢2,947,950.53 which was still outstanding. The Defendant indeed sent same and same was accepted by the Plaintiff per a letter dated 2nd February, 2016. However the Defendant again failed to honour the terms of its second payment plan which should have terminated with a final and full amortization of the debt in September 2016. However the Defendant still on the date of the Plaintiff’s Writ was still indebted to the Plaintiff for the sum of GH¢822,950.53. Despite repeated demands the Defendant had not paid the said amount to the Plaintiff. The Defendant’s Statement of Defence and Counter-claim had been struck out as the Defendant failed to comply with the orders of this Court to file a Witness Statement. That makes the Plaintiff claim been uncontested. I will however subject the Plaintiff’s claim to some scrutiny in order to ascertain as to whether same is of merit. In paragraphs 3, 6, and 7 of the Plaintiff’s Statement of Claim, the Plaintiff traced how the Defendants indebtedness of GH¢3,647,050.53 was eventually reduced to GH¢2,947,950.53 as at January 2016. The chronology of the documents presented from Exhibit ‘D’ to Exhibit ‘E’ clearly shows that as at January 2016, the Defendant by its own letter shows that they owed the said amount. In Exhibit ‘A’ the Plaintiff produced evidence to validate the allegation that as of 11th March 2015 the Defendant admitted that it owed GH¢3,647,050.53 per a letter dated 11th March, 2015. Exhibit ‘B’ indicates that there was an agreement per a meeting held on 20th March, 2015 at which a plan for the settlement of the outstanding amount in Exhibit ‘A’ was agreed. Exhibit ‘C’ is a demand for the repayment of GH¢2,947,950.53 as of 6th November, 2018. Exhibit ‘D’ is a letter from the Defendant admitting the indebtedness of GH¢2,947,950.53 and per Plaintiffs letter dated 6th November 2015 requesting for time to repay. Exhibit ‘D’ is Plaintiff’s reply to the Defendant’s letter admitting the Defendant per its Demand note of 6th November 2015 and requesting it to revert with a payment plan to be strictly adhered in respect of the Defendant’s repayment of the debt. In Exhibit ‘E’ the Plaintiff substantiated its claim per its paragraph 10 of the Statement of claim that the Defendant indeed reverted with a payment plan in respect of the repayment of GH¢2,947,950.53 which was to be completely repaid by Sept 2016. In Exhibit ‘F’ the Plaintiff accepted the proposed payment plan by producing a letter dated 2nd February 2011. In Exhibit ‘G’, the Plaintiff issued a demand notice for the repayment of GH¢822,950.53. Exhibit ‘H’ is the final Demand Notice from the Plaintiff to the Defendant for the repayment of the GH¢822,950.53. Based on the Plaintiff’s Statement of Claim, Witness Statement and more especially Plaintiff’s Exhibit ‘A’ – ‘H’ the Plaintiff had established its case against the Defendant and same has merit. Despite the striking out of the Defendant’s defence and Counter-claim the Defendant was still invited for the trial but the Defendant refused to attend the trial. By a resent decision of the Supreme Court, the conduct of the Defendant not responding to the Court process duly served on it ought to be respected, but the Defendant ought to be made to face the corresponding sanctions that come with it. See the case of:- Alabi vrs B5 Plus Company Ltd. [2018/19] 1GLR 197 Held – “where a party voluntarily and deliberately failed and or refused to attend upon a Court of Competent jurisdiction to prosecute a claim against him, he could not complain that he was not given a fair hearing or that there was a breach of natural justice. The Defendant must be respected for making such a choice, but they must not be allowed to get away with it”. The Plaintiff during the trial filed a Motion for Summary Judgment. In its Affidavit in Support of the said Motion, the Plaintiff averred in paragraph 25 of the Affidavit in Support of that application as follows:- “That our lawyer learned belatedly that the 2 cheques totaling GH¢150,000.00 issued by the Respondent only after service of the Writ on its subsequently cleared, thereby reducing its total liability of GH¢822,950.5 by the said amount paid” I will therefore factor in this payment of the GH¢150,000.00 in this judgment. I therefore enter judgment in favour of the Plaintiff against the Defendant as follows:- 1. I order the Plaintiff to recover from the Defendant amount of GH¢822,950.53 less GH¢150,000.00 that is GH¢672,950.53. 2. Interest on the above mentioned amount from September 2016 till the date of final payment. 3. Interest on the GH¢150,000.00 from September 2016 to the day this Writ was issued i.e. 4th September 2018. 4. I award cost of GH¢50,000.00 in favour of the Plaintiff against Defendant. (SGD) WILLIAM BOAMPONG (JUSTICE OF THE HIGH COURT) COUNSEL: EYRAM AKYEA ANSAH FOR KWAME AMANKWAH-TWUM ESQ, FOR THE PLAINTIFF/APPLICNAT KWASI KWAKYE-SERBEH ESQ, FOR THE DEFENDANT/RESPONDENT 9