ICONS INVESTMENT VRS KUSUM (A2/84/23) [2024] GHADC 93 (27 February 2024)

IN THE DISTRICT COURT 2, TAMALE HELD ON TUESDAY 27TH FEBRUARY, 2024 BEFORE HIS WORSHIP D. ANNAN ESQ. SUIT NO. A2/84/23 - - PLAINTIFF DEFENDANT BETWEEN ICONS INVESTMENT AND YAKUBU HUMU KUSUM JUDGMENT INTRODUCTION 1. This judgment relates to a commercial contract. 2. The plaintiff is described as a limited liability company registered under the laws of Ghana with its head office at Tamale and it is into the sale and distribution of assorted soft drinks. Defendant is a sole trader and deals in similar soft drinks. 3. On 27th July, 2023 the plaintiff through his counsel caused to be issued a writ of summons against the defendant for the following: a. Recovery of GHS23,865.00 being the total cost of 560crates/packs of assorted soft drinks that plaintiff supplied to defendant on credit at the request of the defendant but defendant has since failed to pay. b. Interest on the said amount at the prevailing bank rate till date of final payment. - 1 - c. Damages for breach of contract. d. Costs including solicitor’s fees. e. Any other relief(s) that this Honourable Court deems fit. 4. The defendant disputed the plaintiff’s claim. In her defence, she stated that plaintiff is his former fiancé and that plaintiff always supply her products ‘gratuitously in satisfaction of the work that she supports him to execute.’ 5. With the above contentions, parties were ordered to file their witness statements to which they did. The respective case of either party is detailed below. PLAINTIFF’S CASE 6. The plaintiff testified through Sulley Alhassan (PW1) and Sumani Fuseini (PW2). PW1, who is the manager of plaintiff company tendered in evidence a copy of the plaintiff’s Certificate of Incorporation together with the Certificate to Commence Business as Exhibit A. According to PW1, on 28th December, 2022 at the defendant’s request, plaintiff supplied 560 crates/packs of assorted soft drinks at a cost of GHS23,865.00 to the defendant. He added that defendant was to make payment by 31st January, 2023 but defendant has simply failed to pay. He then served a demand notice on defendant, but defendant failed to honour the said notice. Copy of the said demand notice was tendered and marked as Exhibit B. 7. PW1 sought to tender a WhatsApp chat between the parties herein prior to the said demand notice, but counsel for plaintiff on a second thought withdrew same. 8. PW2 added that sometime in January 2023 PW1 called him that defendant had failed to pay off her debts owed the plaintiff company. He, PW2, then called the defendant - 2 - and defendant admitted that she owed plaintiff company GHS23,865.00 but that he (PW2) should plead with PW1 for time to pay off. PW2 stated that that defendant informed him that she had sold the goods to one man at Chereponi, but the said man is yet to pay. PW2 averred also that later in September 2023, defendant’s husband Abdul-Hayyu Fuseini contacted him to plead with PW1 to withdraw the case from court since they were mobilizing to pay the debt. DEFENDANTS’ CASE 9. According to defendant, PW1 was his former boyfriend and that they dated for about 5years. They, however, have separated and she is presently married. Defendant explained that prior to meeting PW1 she worked as a sales girl with one Iddrisu Bigamaywayo Enterprise, near the OA Lorry Station, Aboabo. She added that Iddrisu Bigamaywayo Enterprise deals in assorted drinks similar to that of the plaintiff company. She stated that PW1 requested that she stopped working as sales girl and that he would set her up. However, PW1 failed on his promise. Nonetheless, she resigned from Iddrisu Bigamaywayo Enterprise and got a job at Ashfoam Depot, this time also as a sales girl. Again, PW1 insisted that she stopped working as a sales girl. She resigned and got a store which PW1 inspected as ok. Defendant stated further that anytime PW1 received products, PW1 would invite her to assist with the offloading either at the Sankpagla or the Sagnarigu warehouse and that PW1 would give her 50 or 100crates/packs of assorted drinks, gratuitously, in setting her up. When her business was up and running, she would directly request for goods. She contended that she took goods either on cash or credit. With the credit transactions, she averred that she was required to pay within a month or that PW1 will come for the goods. She argued that on two occasions that she took goods on credit from PW1 but did not honour the payment, PW1 personally came for the goods from the store. She indicated that she has no outstanding credit transaction with the plaintiff. - 3 - 10. She further stated that she was at all material times dealing with PW1 and not PW1 as an agent of plaintiff company. She added that this present claim is born out of soar grapes of their broken relationship. She averred that PW1 bought her a Somalink Motorbike which PW1’s wife is against it. She explained that her planned marriage with PW1 failed because PW1 claimed his present wife was betrothed to him and so he had to succumb to family pressure, but assured her to have patience and that she would be a second wife. The said motorbike was therefore to appease her. Defendant maintained that she is presently marriage and that is why plaintiff is claiming for something he had gratuitously given her. 11. Defendant did not call any witness. ISSUE FOR TRIAL 12. The issues borne out of the facts are: a. Whether or not defendant had taken goods on credit worth GHS23,865.00 and has failed to pay? b. Whether or not the said goods were given gratuitously? BURDEN OF PROOF 13. 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 - 4 - 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. 14. 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 ISSUE Issue a and b 15. I shall determine issues a and b together. Issues and b are whether or not defendant had taken goods on credit worth GHS23,865.00 and has failed to pay and whether or not the said goods were given gratuitously? 16. Contracts are legally binding agreements between two or more parties that outline the rights and obligations of each party. It can be oral or written. Often, written contracts are preferred over oral contracts since it stipulates clearly the terms agreed therein. Hence, it is not the duty of the court to make a new contract for parties on terms they have not mutually agreed upon, see Mireku & Tetteh (Dec’d): In Re Mireku v Tetteh [2011] 1 SCGLR 520. 17. In effect, where parties have an oral contract and there is no dispute as to a term, same would be construed as binding on the parties. The issue, however, arises when one party contends that a term was part of the oral contract and the other disputes it. 18. In civil cases like this one, a party who makes allegations has the burden to lead evidence to prove those allegations unless they are admitted by the other party. If he fails to do that, a ruling on those allegations will be made against him, see Okudzeto - 5 - Ablakwa (No. 2) v. Attorney-General & Obetsebi-Lamptey (No. 2) [2012] 2 SCGLR 845. Also a person who makes an averment or assertion which is denied by his opponent has a burden to establish that his averment or assertion is true and he does not discharge this burden unless he leads admissible and credible evidence from which the fact(s) he asserts can properly and safely be inferred, see Zabrama v Segbedzi [1991] 2 GLR 221. See also Majolagbe v. Larbi [1959] GLR 190 per Ollennu J (as he then was) where the court held that: “Where a party makes an averment capable of proof in some positive way, e.g. by producing documents, description of things, reference to other facts, instances, or circumstances, 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”. 19. Hence, the onus is on the plaintiff company to prove that the defendant took goods worth GHS23,865.00, but has failed to pay, else an unfavourable ruling will be entered against it, see Okudzeto Ablakwa (No. 2) v. Attorney-General & Obetsebi-Lamptey [supra] and Ababio v Akwasi III [supra]. 20. From the evidence, whereas plaintiff maintained that defendant took goods worth GHS23,865.00, the defendant contended that she has no credit transaction with the plaintiff. In another breathe, defendant stated that the goods were given to her gratuitously. She admitted that plaintiff usually would come for the goods, if payment was not made within a month. Plaintiff, however, contended that the goods were not in the store implying that the defendant had sold them and so had to pay for it. PW2 added that defendant and her husband confirmed the debt and that they pleaded for - 6 - time to pay. Hence, the defendant cannot turn round to say that she had not taken any goods on credit or that the goods, if any, were given gratuitously. 21. Below is what ensured when defendant was under cross-examination: “Q: You remember plaintiff issued a demand notice to you? A: Yes. Q: And what was your reaction to the demand notice? A: When I received the demand notice, I saw a number on it and when I called, it was plaintiff’s lawyer. After telling him that I did not understand the purpose of the letter, he invited me. When I went to the lawyer, I met the plaintiff there and the lawyer asked me as to whether I am aware of the transaction between I and the plaintiff? I requested for extension of time from plaintiff so as to pay off the money, but the plaintiff declined and brought me to court. Q: And as you stand now, you have made any payment out of the GHS23,865.00 to plaintiff? A: The supply to me was not in the form that I am supposed to pay. Q: You are on record to have stated that you pleaded for extension of time to pay the plaintiff the amount you owe him? A: No. - 7 - Q: You are not being truthful to this court? A: … Q: I am being truthful. You told PW2 to intercede and plead with the plaintiff to allow you or give you some time to pay, I am putting that to you? A: PW2 called me wanting to know what transpired at court and when I started PW2 told me that my relationship would be disgraced in court, so I should go ahead with the payment. I told him that I tried to the extent of my mother involving herself with the idea of paying GHS5,000.00 to plaintiff and plaintiff declined. Q: That is all for the witness.” 22. From the above, I come to the firm conclusion that defendant took goods on credit worth GHS23,865.00, but has simply failed or refused to pay. She relied on her previous relationship with PW1 to avoid payment. Unfortunately for her, she admitted during cross-examination that she asked for time to pay. Hence, she cannot hide behind the veil of her previous relationship to avoid liability. I, therefore, hold that defendant is liable to pay for the said goods. CONCLUSION 23. In sum, I hereby enter judgment in favour of the plaintiff as follows: a. Recovery of the amount of GHS23,865.00 being the total cost of 560crates/packs of assorted soft drinks that plaintiff supplied to defendant on credit but defendant has failed to pay. - 8 - b. Interest on the said amount at the prevailing bank rate from 1st February, 2023 till date of final payment. c. Damages for breach of contract assessed at GHS2,000.00 d. Costs assessed at GHS1,000.00. H/W D. ANNAN ESQ. [MAGISTRATE] ABRAHAM N. DAMTAR ESQ., HOLDING THE BRIEF OF ALHAJI MOHAMMED S. ABDULLAH ESQ., FOR THE PLAINTIF SALISU B. ISSIFU ESQ., FOR THE DEFENDANT Reference 1. ss. 11(4), 12(1) & (2) and 14 of the Evidence Act ( NRCD 323) 2. Faibi v State Hotels Corporation [1968] GLR 471 3. In re Ashalley Botwe Lands; Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2004] SCGLR 420 4. Ababio v Akwasi III [1995-1996] GBR 774. 5. Mireku & Tetteh (Dec’d): In Re Mireku v Tetteh [2011] 1 SCGLR 520. 6. Okudzeto Ablakwa (No. 2) v. Attorney-General & Obetsebi-Lamptey (No. 2) [2012] 2 SCGLR 845 at page 867 7. Zabrama v Segbedzi [1991] 2 GLR 221 8. Majolagbe v. Larbi [1959] GLR 190 - 9 -