Boakye v Wilblob Ghana Limited and Another (A2/148/22) [2025] GHADC 140 (27 March 2025)

IN THE MAGISTRATE COURT HELD AT AMASAMAN ON THE 27th DAY OF MARCH, 2025 BEFORE H/W ANNETTE SOPHIA ESSEL (MRS.) – MAGISTRATE EMMANUEL OKOREE BOAKYE PLAINTIFF SUIT NO: A2/148/22 VRS: 1. WILBLOB GHANA LIMITED DEFENDANTS 2. MR. WILLIAM ATAMUDZI JUDGEMENT INTRODUCTION: By a Writ of Summons filed in the Registry of this court on 13th April, 2022 the plaintiff seeks the following reliefs: i) ii) Recovery of the sum of Eighty-Five Thousand Cedis (GH¢85,000.00) only which represents Defendants indebtedness to Plaintiff gave Defendants at their own request. Interest on the sum of Eighty-Five Thousand Cedis (GH¢85,000.00) only at the prevailing commercial rate from 22nd June, 2015 till date of final payment. iii) Cost including legal fees. The plaintiff is a businessman and brings this action through his lawful attorney: Global Debt Trackers Ltd; a debt recovery company duly registered and incorporated under the laws of Ghana. The 1st defendant an International Multi Sector Business Network Company registered under the Laws of Ghana. The 2nd defendant is the Managing Director of the 1st defendant company and the alter ego of the 1st defendant. Page 1 of 10 CASE OF THE PLAINTIFF: Plaintiff avers that sometimes in 22nd June, 2015, at the request of 2nd Defendant, Plaintiff gave financial assistance to Defendants for an amount of One Hundred and Seventy Thousand Cedis (GH¢170, 000.00) only to enable Defendants to construct a school building project. The 2nd defendants upon receipt of the money (financial assistance) signed a note of acknowledgement of receipt of money. Plaintiff avers that Defendants made a part-payment of this amount to the tune of Sixty-Five Thousand Cedis (GH¢65,000. 00) only to Plaintiff leaving an outstanding balance of Eighty-Five Thousand Cedis (GH¢85,000.00) only as at the inception of this suit. Plaintiff claims that Defendants made a further payment of Fifty-Five Thousand Cedis (GH¢55,000.00) only pendante-lite. The plaintiff concluded that Defendants despite several continue renege in the payment of this amount outstanding mentioned supra and consequently prays the court for the reliefs above mentioned. During trial, Plaintiff relied on his witness statement and was cross-examined of same. In support if his case the plaintiff tendered the following exhibits: Exhibit ‘A’: Power of Attorney of Plaintiff to his Lawful Attorney. Exhibit ‘B’: Copy of contract awarded by the Ministry of Education to the defendants. Exhibit ‘C’: Copy of Acknowledgement note of Defendants of receipt by 2nd Defendant. Exhibit ‘D’: Demand Notice of Plaintiff served on Defendants. Exhibit ‘E’: Copy of bank transfer transaction of Twenty Thousand Cedis (GH¢20,000.00) only to Plaintiff. Exhibit ‘F’: Copy of payment of Five Thousand Cedis (GH¢5,000.00) only to Plaintiff via Plaintiff’s lawful attorney on 5th July, 2022. CASE OF THE DFENDANT: It is the contention of the defendants that the plaintiff voluntarily gave to the defendants One Hundred and Seventy Thousand Cedis (GH¢170, 000.00) only as parties in this suit are friends. This was done by the plaintiff with a goal of investing in the defendants’ business after expressing interest in same. Defendants admitted that upon receipt of the money they issued the receipt of the money they issued the receipt of payment with a plan of parties herein and another friend meeting as business parties to Page 2 of 10 discuss further business details which meeting never took place. Defendant further admitted refunding to the plaintiff an amount of Eighty-Five Thousand Cedis (GH¢85,000.00) only out of the total amount when Plaintiff informed the defendants that he: Plaintiff had lost interest in their business. Defendant stated that Plaintiff by mounting this present action had surprised him as Plaintiff together with another friend voluntarily expressed interest in investing in his business. Defendant stressed that at all material times he kept Plaintiff updated on the failure of government to pay Defendants for a Community High School project which Defendants were undertaking under the GetFund project. Defendants asserted that this was one of such regular investment opportunities he had earlier explored and undertaken with the plaintiff. Defendant vehemently maintained that they were an honest business entities and credit worthy. Defendant concluded that out of his total indebtedness to Plaintiff, he had paid One Hundred and Twenty-Five Thousand Cedis (GH¢125,000.00) only leaving a balance of Forty-Five Thousand Cedis (GH¢45,000.00) only and not Fifty-Five Thousand Cedis (GH¢55,000.00) only as asserted by Plaintiff. During trial Defendant relied on his Witness Statement and Exhibits tendered without objection and was cross-examined on same. Defendant concluded by praying the court to be allowed to pay Plaintiff upon completion of the project and payment of same by the court of Ghana. ISSUES FOR DETERMINATION: In view of the pleadings, evidence led and cross-examination of parties herein, the court set down issue for determination by the court the amount owed by Defendants to Plaintiff. It is in the respectful opinion of the court that this sole issue will bring closure to this matter. PROCEDURE OF TRIAL: The plaintiff sued per his lawful attorney; Global Debt Trackers Limited whilst the defendants were represented by the 2nd defendant: the managing director of the defendant company. Parties were legally represented. At the close of the pleadings, parties were referred to Court-Connected Alternative Page 3 of 10 Dispute Resolution (C. C. A. D. R) to attempt settlement which same broke down. The court proceeded to hear the matter. During trial Plaintiff testified by the managing director of his lawful attorney and Defendants testified by the 2nd Defendant. No witness was called by either party. At the close of Hearing the matter was adjourned for judgement. The parties were directed to file their addresses to assist in the determination of this matter. EVIDENCE ADDUCED BY THE PLAINTIFF: According to the Plaintiff, he gave financial assistance of One Hundred and Seventy Thousand Cedis (GH¢170,000.00) only to the Defendants on 22nd June, 2015 but Defendants refused to pay back the money. Plaintiff proceeded to say that upon several demands. Defendants paid Sixty-Five Thousand Cedis GH¢65,000.00) only on instalments basis. Plaintiff later engaged the services of an Attorney through Power of Attorney and upon the service of the demand letter by the Plaintiff Lawful Attorney on the Defendants. Defendants paid Twenty Thousand Cedis (GH¢20,000.00) only to the Plaintiff bringing the total payment to Eighty-Five Thousand Cedis (GH¢85,000.00) only. Plaintiff says that Defendants again paid Twenty Thousand Cedis (GH¢20,000.00) only immediately after the filing of the Writ and during the prosecution of the case Defendants again paid Ten Thousand Cedis (GH¢10,000.00) only to the Plaintiff through Defendants’ lawyers. It is the case of the Plaintiff that the Ten Thousand Cedis (GH¢10,000.00) only paid through Defendants’ lawyers were paid in two installments of Five Thousand Cedis (GH¢5,000.00) only each and receipts were issued to the lawyers for the Defendants. Plaintiff says that Defendants have so far paid One Hundred and Fifteen Thousand Cedis (GH¢115,000.00) only leaving outstanding balance of Fifty-Five Thousand Cedis (GH¢55,000.00) only unpaid. EVIDENCE ADDUCED BY 2nd DEFENDANT: The 2nd Defendant; William Atamudzi, relied on his witness statement filed on 20th January, 2023 and attached a copy of the project awarded to the 1st Defendant company, which was tendered and admitted and marked as Exhibit 1 as well as a copy of a receipt of acknowledgement also marked as Exhibit 2 as his evidence in -chief and same were subjected to cross examination by Plaintiffs’ counsel. Page 4 of 10 Per his witness statement, 2nd Defendant told the Honourable Court that, he and the Plaintiff became friends after their common friend, Mark Oliver Kevor had introduced them to each other following which introduction, an intention was declared by the plaintiff and Mr. Kevor, to invest in the business of the Defendants in order to share in the profit after payment by the Government of Ghana. This was after parties have become friends and also subsequently deciding to enter into a business relationship, where the two of them would invest in Defendants’ company for the purpose of financing some construction project the company will be undertaking after which they would all share the profit. It is also the 2nd Defendants’ evidence that, parties agreed that, any amount invested into any job being undertaken by the Defendants would not attract any interest whatsoever since by their investment, they have also become partners and also part owners of the company. 2nd Defendant also told the Court that, sometime in the year 2015, 1st Defendant, Wilglob Ghana Limited, was awarded the construction of a GETFUND project, which was a Community Day Senior High School at Sakasua in the Upper Manya District, following which the Plaintiff and his friend Mark Oliver Kevor, entered into a business discussion with the 2nd Defendant that culminated in the Plaintiff investing an amount of One Hundred and Seventy Thousand Ghana Cedis (GH¢170,000.00) only as a business partner for the construction of the project. 2nd Defendant further told the court that, following the investment of the said amount of One Hundred and Seventy Thousand Ghana Cedis (GH¢170,000.00), parties agreed that, the amount invested, was not going to attract any interest since by their investment, they had also become part owners of the company and or business partners to Defendants and subsequently agreed that all, all proceeds or the profit from the business be shared in accordance with how much each of them had invested into the project. It is also the evidence of the 2nd Defendant that, the agreement to share the profit of the business was however contingent on the fact that, the Government paid certificates raised by the defendants, since the project was awarded to Defendants by the Government of Ghana. It was agreed by the parties that, any amount to be shared by the business partners could only be determined after the completion of the project and subsequent payment by the Government of the contract sum of Seven Million, Five Hundred and Sixty-Eight Thousand, One Hundred Cedis, Eighty-Six Pesewas (GH¢7,568,100.86) only. Page 5 of 10 According to the 2nd Defendant, the agreement, which has brought parties before the honourable court is not the first time that parties have engaged in such a business transaction as parties. According to 2nd Defendant, in the first instance, an amount of One Hundred Thousand (GH¢100, 000.00) only was invested in another project by the plaintiff, which proceeds (profit) were shared upon payment by the Government without the payment of any interest whatsoever. 2nd Defendant further told the honourable court in his evidence that, out the amount Seventy Thousand Ghana Cedis (GH¢170,000.00) only Plaintiff and Mark Oliver Kevor invested into the business, Defendants have refunded the plaintiff, an amount One Hundred and Twenty-Five Thousand (GH¢125, 000.00) only leaving a balance or an outstanding payment Forty-Five Thousand (GH¢45, 000.00) only to be paid back to the plaintiff. It is further the evidence of the 2nd defendant that, parties were referred to Alternative Dispute Resolution (ADR) and after the issues had been assessed, Defendants were asked to pay an additional amount of Five Thousand Cedis (GH¢5, 000.00) only to the plaintiff after have paid the outstanding principal investment amount Forty-Five Thousand (GH¢45, 000.00) only to the plaintiff. 2nd Defendant informed the court that, Defendants managed to raise some amount of money to work on the project and succeeded in raising a certificate of Nine Hundred Thousand Cedis (GH¢900,000.00) only, which was paid by the Government of Ghana and it was out of that amount, Defendants paid to Plaintiff the amount of One Hundred and Twenty-Five Thousand (GH¢125, 000.00) only including an agreed amount of Ten Thousand Cedis (GH¢10,000.00) only paid through Defendants’ lawyer, upon persistent pressure from the plaintiff, leaving an unpaid balance of Forty-Five Thousand (GH¢45, 000.00) only. 2nd Defendant in his evidence again explained to the court that, by the design of their business transaction, Plaintiff is not entitled to interest on the invested amount, since that was not part of Plaintiff’s agreement with Defendants and that parties would meet later to have a business discussion on the way forward, which meeting could not take place until Plaintiff instituted this legal action against Defendants. According to the 2nd Defendant, that receipt acknowledging payment of the invested amount of One Hundred and Seventy Thousand Ghana Cedis (GH¢170,000.00) only indicated that, the plaintiff and Page 6 of 10 his friend, Mark Oliver Kevor, were investing in the business discussion on the way forward, which meeting could not take place until Plaintiff instituted this legal action against Defendants. Upon cross-examination, 2nd Defendant further told the court that, Plaintiff failed to live up to the expectation of his promise to raise of 20% of the contract sum as his investment in the business but instead invested an amount of only One Hundred and Seventy Thousand Ghana Cedis (GH¢170,000.00) only. This was when counsel for Plaintiff had sought to question the position held by the 2nd Defendant that, the One Hundred and Seventy Thousand Ghana Cedis (GH¢170,000.00) only was an investment, which would qualify the plaintiff to a share in the profit of the business. 2nd Defendant emphasized during cross-examination that, Plaintiff indeed invested in the business of the 1st Defendant and that, the amount invested was not a loan that should attract interest. ANALYSIS: It is the case of Plaintiff that the defendant as at the date of close of judgement owed him Fifty-Five Thousand Cedis (GH¢ 55,000.00) only out of the One Hundred and Seven Thousand Cedis (GH¢170, 000.00) only. This is a matter capable of proof. The evidential and persuasive burden therefore lay on Plaintiff to proof his averment. In paragraph ten (10) and paragraph eleven (11) of Plaintiff witness statement he stated that: “(10) I know that after filing this suit in court, Defendants have paid Fifty Thousand Cedis (GH¢50,000.00) only leaving outstanding balance of Fifty-Five Thousand Cedis (GH¢55,000.00) only still unpaid. (11). I know that several demands have been made by both Plaintiff and the attorney but to no avail. Find attached a copy of the demand notice served on the defendants marked as exhibit ANA 3.” In support of his testimony, the plaintiff tendered Exhibits C and D which same went in as evidence without objection. The defendants on the other hand did not deny their indebtedness to the plaintiff. The 2nd defendant took pains to narrate the cordial relationship with Plaintiff and catalogued previous transactions held with Plaintiff which same did not rule out his indebtedness to the plaintiff. Defendants however Page 7 of 10 contended that the amount owed Plaintiff in Forty-Five Thousand Cedis (GH¢45,000.00) only and not Fifty-Five Thousand Cedis (GH¢55,000.00) only as owed by Plaintiff. The burden therefore shifted on him to prove his assertion. Section 127(1) and 128 of the Companies Act, 2019 (Act 997) provides that a company shall keep proper accounting records with respect to the financial position and changes in the accounting records. The defendants were therefore duty bond to keep proper records so that they could rely on same to back their assertions. In the case of Phares V Abdallah [1941] 7 WACA 15 at 16 the court held that: “The general rule is that the onus probandi lies on the party who substantially asserts the affirmation of the issues.” All that is before the court is Exhibit ‘1’: Notification y of award of contract and Exhibit ‘2’: Letter of Receipt. These documents in no way speak to the indebtedness of the defendants to the tune of Forty- Five Thousand Cedis (GH¢45,000.00) only as 2nd defendant vehemently maintained. The defendant in the instant suit was represented by the 2nd Defendant who is the alter ego of the 1st defendant. In the case of Okudzeto v Irani Brothers [1974] 1 GLR 74 at 381 the court held that: “The conduct of a company’s business is the responsibility of the Board of Directors.” It is not the testimony of 2nd defendant before the court that he was called out of his sleep to respond to the claim of Plaintiff. Neither is it his defence that he did not receive the said money. Additionally, he was represented by a lawyer and they therefore reserved the option of how to lead evidence in this case. During trial on 31st October, 2024 the 2nd defendant appeared evasive to the court. The 2nd defendant in open court was clearly unsure of payment and kept referring to formal discussions with Plaintiff, his lawyers and the plaintiff “alleged” collection of the unpaid certificate to pursue payment of same through his (Plaintiff) his own goodwill. Eventually 2nd Defendant concluded that he agreed with Plaintiff to pay in installment. Once again it is the opinion of the court that if that is so, there is no payment schedule agreement/ payment plan in support of 2nd Defendant averment before the court. In the case of Union of India v Murugesan Appeal Nos. 2491-2492 of 2021 dated 7th October, 2021 Sajay Kishan Kaul, MM Sundresh after referring to the authority in the case of State of MP v Nardlal Jaiswal [1986] 4 SCL 566 stated that: “.....the High Court in exercise of its discretion document not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic....” Page 8 of 10 It is settled in law that the actions, omissions and or misdeeds of one director cannot bind a company in the absence of a resolution confirming such powers on him. The court consequently holds that the letter of Receipt- Exhibit “2” tendered by 2nd Defendant herein cannot bind the other directors of Wilglob (Ghana) Limited as they did not sign same and there is no resolution before the court directing the payment of such monies to Plaintiff from 1st defendant company. Rather the 2nd defendant is personally liable for the receipt and payment of this money if so found liable as he informed the court during cross-examination that 1st Defendant was his company which he solely operated. He mentioned no other director to the court. The 2nd defendant further vehemently maintained that the amount due was profit from an investment venture with the plaintiff. In support of his averments he tendered Exhibit ‘2’. The court holds that this exhibit goes in no way to assist 2nd Defendant in prosecuting his matter except to impugn on his integrity. In the case of Fordjour v Kaakyire[2015]85 GMJ 61 where Ayebi JA. at page 93 enunciated as follows:- “It has to be noted that the court determines the merit of every case based on legally proven evidenced at the trial and not mere allegations or assertions in the pleadings”. On the totality of evidence before the court on the balance of probabilities, It is the respectful opinion of the court that the response of 2nd Defendant to the claim of Plaintiff is no more than balderdash. The court finds that 2nd Defendant owes Plaintiff Fifty-Five Thousand Cedis (GH¢55,000.00) only which was due for payment as at 22nd June, 2015. Accordingly, judgement is entered in favour of Plaintiff against 2nd Defendant personally and solely for the recovery of this sum forthwith. Interest is to be paid on this sum at the prevailing commercial bank interest rate from 22nd June, 2015 till date of full and final payment. Cost of Ten Thousand Cedis (GH¢10,000.00) only is awarded against 2nd Defendant in favour of Plaintiff. The court finds fortitude in its position in Section 1(4) of the Evidence Act, 1975 (NRCD 323) stipulates as follows: “Where the Court determines that a party has not met the burden of producing evidence on a particular issue the Court shall as a matter of law determine that issue against that party.” Page 9 of 10 I conclude with the opus of the jurist: Christine Dowuona Hammond in her book: The Law of Contract in Ghana where the learned author reiterates that: “...........the function of the Judge is not to seek to discover some elusive mental state of the parties, but rather to ensure that as far as possible, the reasonable expectations of honest men are not disappointed.” (SGD) H/W ANNETTE SOPHIA ESSEL (MRS.) MAGISTRATE Page 10 of 10