Kings Tech. Ref. & Air Condition Services Vrs Nob Djana Company Limited [2022] GHACC 26 (21 December 2022)

1 IN THE CIRCUIT COURT HELD AT AMASAMAN – ACCRA ON WEDNESDAY THE 21ST DAY OF DECEMBER, 2022 BEFORE HER HONOUR ENID MARFUL-SAU, CIRCUIT COURT JUDGE SUIT NO:C2/05/2022 KINGS TECH REF & AIR CONDITION SERVICES PER THE MANAGER, HAMMOND AMEYAW ACHIMOTA MILE 7, ACCRA … PLAINTIFF VRS. NOB DJANA COMPANY LIMITED PER THE MANAGER, NANA AGGREY TAIFA – ACCRA … DEFENDANT ____________________________________________________________________ PARTIES: PLAINTIFF PRESENT DEFENDANT ABSENT COUNSEL: J. K. YEBOAH ESQ. FOR DEFENDANT ABSENT PLAINTIFF IN PERSON JUDGMENT By a Writ of Summons and Statement of Claim filed on 3rd November, 2021 Plaintiff claims against Defendant the following reliefs: 2 a) ‚Recovery of the sum of Eighty- Five Thousand Ghana Cedis being outstanding balance defendant owed plaintiff for the supply of servicing of 62 units of air conditions. b) Interest on the said amount at the current bank rate running from July, 2021 till date of final payment. c) Substantial cost.‛ It is the case of Plaintiff that on 3rd July, 2021 it entered into an Agreement with the Defendant where Plaintiff was to supply sixty-two (62) units of air conditions to the Defendant for an outright payment. Plaintiff says that he delivered twenty-five units of 2.5 horsepower air conditions and ten units of 2 horse power air conditions at the cost of One Hundred and Fifty Thousand, One Hundred and Twenty Ghana Cedis. He says that Defendant failed to make full payment and promised to pay GHȼ135,000.00 and pay the remaining balance after a month. According to Plaintiff, Defendant only paid an amount of GHȼ50,000.00. He says that cheques given him by Defendant bounced and Defendant has wilfully refused to pay the remaining balance of GHȼ85,000.00 despite repeated demands hence the instant action. Defendant entered conditional appearance on 11th November, 2021 and filed a Statement of Defence on 25th January, 2022. At the close of pleadings, the following issues were adopted and set down as the issues for trial: 1. ‚Whether or not on 3rd July, 2021 parties herein agreed whereby plaintiff supplied and serviced sixty-two units of air conditions at a cost of GHC 150,120.00 2. Whether or not defendant made part payment of GHC 50,000.00. 3. Whether or not defendant issued two Ecobank cheques in plaintiff’s name which said cheques got bounced at the counter. 3 4. Whether or not defendant owes plaintiff the sum of GHC 85,000.00 being outstanding balance. 5. Whether or not plaintiff is entitled to his claim.‛ I am inclined to make preliminary remarks about the record of this case before I proceed to determine the issues as set down. On 6th April, 2022, the Parties were ordered to file their Witness Statements and Pre Trial-Check Lists for Case Management Conference to proceed. When on 13th July, 2022 the Defendant had still not complied with the orders of the court, he was afforded one last opportunity to do so for CMC to proceed at the next adjourned date. Again, when the case was called on 26th September, 2022, Defendant had still not complied with the orders of the court. His Statement of Defence was according struck out in accordance with the Rules of Court as amended with the case being adjourned to 9th November, 2022 for hearing; on this date, Defendant was represented by one Thomas Yeboah Afari. I shall now proceed to determine the issues. The Standard of proof required in a civil action was set out in the case of BISI AND OTHERS v. TABIRI ALIAS ASARE [1987-88] 1 GLR 360; SC “The standard of proof required of a plaintiff in a civil action was to lead such evidence as would tilt in his favour the balance of probabilities on the particular issue. The demand for strict proof of pleadings had however never been taken to call for an inflexible proof either beyond reasonable doubt or with mathematical exactitude or with such precision as would fit a jig-saw puzzle. Preponderance of evidence became the trier's belief in the preponderance of probability. But "probability" denoted an element of doubt or uncertainty and recognised that where there were two choices it was sufficient if the choice selected was more probable than the choice rejected. ...” 4 The first issue is ‘whether or not on 3rd July, 2021 parties herein agreed whereby plaintiff supplied and serviced sixty-two units of air conditions at a cost of GHC 150,120.00.’ Plaintiff’s Representative, Ameyaw Hammond testified that on 6th July, 2021, he supplied and serviced sixty-two units of air conditions to the Defendant at a total cost of GHȼ150,120.00. He tendered as Exhibit A an invoice indicating that he supplied 27 units of 1.5 horsepower air-conditions, 10 units of 2 horsepower air-conditions, 25 units of 2.5 horsepower air-conditions, 25 air condition brackets and 20 2x3 cables. PW1 was David Tetteh. He testified that he is the Chief Executive Officer of Plaintiff and that on 6th July, 2021, Defendant bought sixty-two units of air-conditioners from Plaintiff and refused to make outright payment. The evidence of Plaintiff and his witness stood uncontradicted. Though Defendant was notified of the hearing, his counsel failed to appear before the court to cross examine Plaintiff and its witness and Defendant’s Representative before the court also failed to do so when he was afforded the opportunity by the court to do so. In the case of SAFO AND ANOTHER v. BADU [1977] 2 GLR 63 it was held as follows: “Natural justice required that no condemnation should be pronounced behind the back of a man who had had no opportunity to appear and defend his interest, either personally or by his proper representative, but the court would not hold a judgment to be contrary to natural justice where the trial court had jurisdiction over the subject- matter of the suit and the parties thereto, and where the parties had duly and in accordance with common law ideas of natural justice been summoned to the trial so as to have had a hearing or an opportunity of being heard. In the present case, the defendant was summoned to the trial court, she had an opportunity of being heard 5 and would have been heard if she had exhibited vigilance comparable to that of the plaintiff. There was therefore no breach of the audi alteram partem rule which would render the judgment of the trial court void.” Therefore, having regard to the evidence before me, I find that Plaintiff has succeeded in showing on a balance of probabilities that it indeed had an Agreement with the Defendant to supply and service sixty-two (62) air conditioners at a total cost of GHȼ150,120.00 on 6th July, 2021. Issue 2 is ‘whether or not defendant made part payment of GHC 50,000.00.’ Plaintiff’s representative testified that upon persistent demands, Defendant made a part payment of GHȼ50,000.00 leaving an outstanding balance of GHȼ85,000.00. That being the case, I consider that issue 2 does not arise. I shall therefore proceed to consider issue 3 which is ‘whether or not defendant issued two Ecobank cheques in plaintiff’s name which said cheques got bounced at the counter.’ Plaintiff’s representative testified that on 29th July, 2021, Defendant issued Ecobank Cheque with face value of GHȼ35,000.00 in the Plaintiff’s name and the cheque was bounced because the Defendant had no funds in his account. He testified that Defendant again issued another cheque with a face value of GHȼ50,000.00 on 19th August, 2021 which was again bounced at the counter. PW1 also testified that the Defendant issued two cheques in its name to Plaintiff but both cheques were bounced at the counter due to non-availability of funds. Plaintiff’s Representative tendered Exhibit B which is a cheque for Ecobank, McCarthy Hill Branch bearing the name of Defendant Company with the Payee as Plaintiff for an amount of GHȼ35,000.00 dated 29th July, 2021. He also tendered Exhibit B1 which is an Ecobank cheque bearing the name of Defendant with Plaintiff as the Payee for an amount of GHȼ50,000.00. 6 I find that Plaintiff has been able to discharge the burden required by introducing sufficient evidence of the probability of his case. (see. ACQUAYE v. AWOTWI AND ANOTHER [1982-83] GLR 1110). I answer issue 3 in the affirmative that Defendant did in fact issue two cheques to Plaintiff which were not cleared. I shall consider issues 4 and 5 together. Issue 4 is ‘whether or not defendant owes plaintiff the sum of GHC 85,000.00 being outstanding balance’ and issue 5 is ‘whether or not plaintiff is entitled to his claim’. The evidence before this court is that the contract sum from the Agreement is GHȼ150,120.00 and it is not in dispute that Defendant has paid to Plaintiff an amount of GHȼ50,000.00. Therefore, by simple arithmetic, the amount left outstanding is GHȼ100,120. However, Plaintiff testified that Defendant made a part payment of GHȼ50,000.00 leaving a balance of GHȼ85,000.00. Indeed, PW1 also testified that the outstanding balance is GHȼ85,000.00 and Plaintiff’s claim is for an amount of GHȼ85,000.00. I therefore find that Defendant owes the sum of GHȼ85,000.00. On the entirety of the evidence before this court, I find that on a preponderance of probabilities, the Plaintiff’s claim should succeed. I therefore enter judgment in favour of Plaintiff against the Defendant on the reliefs endorsed on the Writ of Summons. Costs of Three Thousand Ghana Cedis (GHȼ3,000.00) is awarded in favour of Plaintiff against Defendant. H/H ENID MARFUL-SAU CIRCUIT JUDGE AMASAMAN 7 7