|
JUDGMENT:
In a writ issued out of the
Registry of this court on 18th
February, 2009, plaintiff is
claiming the recovery of the sum
of GH¢15,000.00 and interest on
it from the defendant/company.
The pliant has averments to the
effect that, plaintiff had been
approached by Alhaji Abubakari,
sometime in September 2008, to
assist the defendant/company,
recover money for work, the
company has executed for
Ministry of Transport, for which
it has not been paid.
Plaintiff averred that through
Alhaji Abubakari, he got into
contact with the Chief Executive
of defendant/company (i.e.
Alhaji Musah) and that it was
agreed that he should ask the
defendant to recover monies owed
it by the Ministry.
Furthermore,
plaintiff alleged GH¢15,000.00
was offered as renumeration for
him if he succeeded in
retrieving the sum of GH¢400,000.00.
He also alleged he succeeded in
that regard, but defendant paid
him only GH¢1,000.00 and has
refused and neglected to pay the
agreed renumeration to him.
The defendant has
denied that it asked Alhaji
Abubakari to inform plaintiff
about the delay in receiving
payment, even though he got the
information about the problem,
when he [Alhaji Abubakari] came
to the Managing Director of the
defendant/company to ask for
financial assistance.
The defendant denied that it
solicited either plaintiff or
other individual’s help to
assist it recover the money owed
to the company.
Indeed every material averment
in the pleadings – i.e.
statement claim has been
denied. And in paragraph 7 and
8, this is what defendant,
stated:
“Save that defendant company’s
Managing Director gave plaintiff
some money during plaintiff’s
visit with someone described as
a ‘Northern sister’, the
averment contained in paragraph
9 of the statement of claim is
denied”
And also in paragraph 8, the
defendant stated:
“In further answer to paragraph
9 of the statement of claim,
defendant says that plaintiff is
a regular visitor to its
premises as a guest of the
Managing Director during which
gifts exchange hands on certain
occasions.”
What defendant has
denied as stated above is the
averment in paragraph 9 of the
statement of claim to the effect
that defendant paid GH¢1,000.00
initially and has refused to pay
the balance.
The under listed are the triable
issues.
a.
Whether or not plaintiff entered
into an agreement with defendant
to pursue defendant’s claims
with the Ministry of Transport.
b.
Whether or not defendant made
part payment of the agreed
payment for the services
rendered.
c.
Whether or not there is any
outstanding balance to be paid.
d.
Any other issues reasonably
arising out of the pleadings.
Plaintiff has alleged that there
was an agreement between him and
the defendant to render certain
services, and has not been paid,
even though he had performed
obligations on him arising out
of the contract.
He therefore carries the burden
of proof, to adduce cogent
evidence to support the
averments made.
All the triable issues, shall be
taken together, and plaintiff
must discharge the burden of
proof on him on the
preponderance of the
probabilities in other to
receive a favourable ruling on
the issues in the Direction.
Plaintiff’s evidence
showed that in September, 2008,
his friend Mr. Bukari informed
him that defendant/company of
which Alhaji Musah is the
Managing Director, had executed
construction works in the Volta
Region but has not been paid.
He continued as follows:
“Mr. Bukari who knows me to be a
star of NPP, so he told me, and
I said I can really help him,
and he said Alhaji Musah
promised that whoever helps him
to get his money he will pay an
amount of ¢100 million at that
time which is about GH¢10,000.00
today. And that, he even
consulted some people who
promised to take ¢500 million.
So I agreed to do that job at
¢100 million”
Furthermore,
plaintiff testified to the
effect that he got in touch with
Dr. Richard Anane, the Minister
in charge of Roads and Transport
and within two weeks the amount
of ¢4 billion and over was paid
to defendant/company.
He tendered EXHIBIT “A” and “B”
which are Daily Graphic, August
8th, 2008, cutting
and an article, all written by
him, in support of the work he
did in facilitating the payment
to defendant/company.
In addition,
plaintiff also stated he used
the same method he employed
first to get another payment
from the Road and Transport
Ministry effected in favour of
defendant/company.
Plaintiff called, Alhassan Osman
as a witness, his evidence on
the aggregate is to the effect
that plaintiff had informed him
that one Alhaji Musah owed him,
and he accompanied plaintiff to
the latters house. And that
they met him, and he promised to
pay the debt. His assertions
were denied by the defence.
Earlier on, plaintiff was
cross-examined, when he was
asked how he dealt with
defendant/company, he stated it
was Alhaji Bukari who made it
possible to get in touch with
Alhaji Musah the Managing
Director of defendant/company.
He said because it was the
Managing Director, who dealt
with him, he and the company are
liable in this suit, he has
instituted.
He asserted Alhaji Bukari and
Alhaji Musah (Managing Director
of defendant) and himself had
met to discuss the work he had
to do for defendant/company, and
he denied the suggestion that he
has been going to Alhaji Musah
to ask for financial assistance.
Furthermore, he asserted that,
he had obtained documents from
the defendant’s office which he
used to pursue the claims on
defendant’s behalf.
Plaintiff denied the fact that
GH¢1,000.00.00 given to him by
Alhaji Musah was one of those
financial assistance he had been
asking for, he stated he was not
a beggar, but a responsible
person and that his car engine
even broke down as a result of
trips he had to make to the
various Ministries and
Department’s pursuing the
payments which were made to
defendant.
The defence’s case
is one of a denial of the
existence of any agreement
between plaintiff and the
company.
In cross-examination of
plaintiff it was suggested to
him, his suit was not against
Alhaji Musah but the company,
and the answer given by him has
been reviewed above, plaintiff
gave an answer which showed that
his action is against both the
defendant/company and its
Managing Director, Alhaji Musah.
Secondly, it was put to
plaintiff that he had never met
Alhaji Musah with Alhaji Bukari
to discuss the agreement or the
work that he allegedly did on
behalf of the defendant, this
plaintiff denied.
Thirdly, it was put to him that
if it is his case that
GH¢1,000.00 he received was not
several of those monies he had
been asking Alhaji Musah but
rather transport fare or part
payment as he has alleged,
whether he had issued receipt
over it, but, he said he did
not.
The defendant called
Wahab Alhassan a Director of
defendant/company as a witness,
he admitted knowing plaintiff,
he denied the fact that the
company had engaged plaintiff to
pursue payment for work done, on
its behalf.
He stated as a construction
company when work certificates
are raised they have officers
who do the check on them.
He asserted there is no company
resolution, mandating plaintiff
to do any work on its behalf,
and the company is not aware
that plaintiff had done any work
on its behalf.
Whilst under
cross-examination, this witness
admitted receiving from
plaintiff a write up on campaign
strategy, and that he never
received anything from him in
relation to the company’s
business.
Plaintiff tested, the witness
claim, as regards his status as
a Director of defendant/company,
he even cross-examined him on
the location of the company
offices. Plaintiff then put his
case to PW1 to the effect that
he was engaged to retrieve
monies for defendant and he did
that, and was paid GH¢1,000.00
leaving the balance to be paid.
Besides, PW1, defendant called
Abdul Talell Alhassan, an
Accounts Clerk of
defendant/company. His
testimony is that the pursuit of
work certificate at various
Department and Ministries is his
job schedule, and that he is
surprised an individual who does
not work for the company – i.e.
who is not the company’s
employee can trace company
cheques etc as plaintiff has
claimed.
In short, he denied the fact
that plaintiff ever did any job
for the company as claimed.
Plaintiff in his
cross-examination put his case
across as reviewed in respect of
the other witness already.
The plaintiff is required to
discharge the burden of
pursuasion on it, and adduce
evidence to show that there was
a valid agreement, made orally,
where he was mandated to pursue,
and facilitate payment s (i.e.
two payments) on behalf of the
defendant.
Generally speaking
an agreement or an understanding
is reached when one party
accepts an offer made by the
other. The agreement must be
CERTAIN and FINAL.
It is also the case that it is
the expression of willingness to
contract on specific terms that
is known as an offer.
And it becomes binding as soon
as it is accepted by the person
to whom it is addressed. Again
the objective test is what is
adopted by the court to
determine whether there is an
offer and acceptance; the
subjective test may apply in
appropriate cases too. For an
acceptance to be valid it must
be final and unqualified
expression of assent of the
offer, suffice it to say that
parties must agree on same TERMS
and it is the duty of this court
in this suit to construe what
had transpired and to determine
whether there was an agreement
or otherwise.
Furthermore, as a
general rule, a promise is not
binding as a contract unless it
is supported by some
CONSIDERATION. This concept of
consideration for a valid
contract has a purpose, it is
meant to provide legal limits on
the enforceability of agreements
even when they are meant to be
legally binding and not vitiated
by some factors such as mistake,
misrepresentation, duress or
illegality.
It is accepted that a basic
feature of the doctrine is the
idea of RECIPROCITY “something
of value in the eye of the law”,
must be given for a promise in
order to make it enforceable as
a contract.
Still on what will
constitute a valid contract, the
concept of consideration as
stated above is defined as
follows in the case:
TSEDE &
OR VRS. NUBUASE & ANOR
It is defined
as:
1GLR 338.
“A valuable consideration in the
sense of the law consist either
of some right, interest or
benefit accruing to the one
party or forbearance, detriment,
loss or, responsibility given,
suffered or undertaken by the
other.”
In this trial
plaintiff is required to
establish the fact that an offer
of job, task or service to
pursue cheques, which are
awaiting approval and payment
for works executed by
defendant/company, had been
given to him.
He must also show that, there
was a clear, and definite
expression of the willingness of
defendant/company to contract on
specific terms. And that there
was finality and certainty about
the offer made.
In other words, the offer
allegedly made must not be
predicated on other
contingencies that must occur,
in other to make it an offer.
In short, plaintiff
must establish those
requirements for a valid
contract as stipulated earlier
on in this judgment.
The evidence reviewed showed
that, plaintiff’s testimony was
just a repetition of his
pleadings. He mentioned one
Alhaji Bukari and also former
Vice President Aliu Mahama, but
failed to call any of them. In
the case of the former he said
he had travelled out of the
jurisdiction, and for the
latter, he did not explain why
he did not call him.
The defendant has
denied that it engaged plaintiff
to perform the activities he
said he was involved in. The
defence stated there was no
decision and resolution passed
by the defendant/company to
engage a private individual to
pursue its cheques for work
certificates at the GETFUND
secretariat and the Ministries.
In the face of these denials,
plaintiff can only succeed in
establishing that a valid offer
was made to him which he
accepted, by calling Alhaji
Bukari.
Therefore, the failure to call
him constitute a failure to call
material witness, whose
testimony, may help tilt the
scale on the issue of whether a
valid OFFER, was made by
defendant to plaintiff.
The case of OWUSU VRS. TABIRI
[1987-1988] GLR 287, refers.
As well as:
REGINA
VRS.
ANSERE W. A. L. R. 1948 385.
Furthermore, I have weighed
plaintiff’s testimony in light
of cross-examination and the
defence proffered, and I am of
the view that, he has failed to
establish facts which could lead
to a favourable finding in his
favour, as required by Sections
11 Subsection 1 and 4 and
Section 14 of Evidence Act [NRCD
323]. And as held in these
cases:
1)
MAJOLAGBE VRS. LARBI [1959]GLR
190, and
2)
FAROE ATLANTIC COMPANY VRS. A.
G. [2006] 1MLR. In the Faroe
case, in Holding 1: states
“Proof in law is the
establishment of facts by proper
legal means. Where a person
makes an averment capable of
proof in some positive way e.g.
by producing of documents,
descriptions of things,
references to other facts,
instances or circumstances, and
producing other evidence of
facts and circumstances from
which the court can be satisfied
that what he avers is true”.
I find and hold that
plaintiff has failed to
establish issue 1, namely that
he had entered into an agreement
with defendant to pursue
defendant’s claims at Ministry
of Transport.
Secondly, I find and
hold that, the description of
GH¢1,000.00
[which defendant admitted was
given to plaintiff by Alhaji
Musah, the Managing Director of
defendant/company] as part
payment of GH¢15,000.00,
endorsed on the writ is
inaccurate. Because, plaintiff
had described that same amount
as transport fare given to him
by Alhaji Musah, and later
testified also to the effect
that, it is a part payment.
This later assertion is an
afterthought and it is rejected
as not credible.
Furthermore, if the amount was
part payment, why did plaintiff
endorse the whole sum allegedly
promised him without deducting
the GH¢1,000.00. This goes to
show the contradiction in
plaintiff’s own case as
presented before the court.
The defence has
rebutted the assertions
plaintiff made on matters which
are material to establishing the
fact that, there was a valid
contract between the two
parties.
It is quite unnecessary to touch
on issues such as CONSIDERATION,
and RECIPROCITY, as in every
valid contract, because
plaintiff has failed to clear,
the first hurdle namely,
establishing that there existed
a valid OFFER made to him.
I have found that
plaintiff who had described
himself as a STAR of NPP wielded
a BIG POLITICAL STICK, however,
whether he used it in
circumstances that amount to a
valid contract enforceable at
law, is what he has failed to
do.
On the preponderance
of the probabilities plaintiff
has failed to discharge the
burden of proof on it.
His action in its entirety is
dismissed.
Cost of GH¢500.00 is awarded
against the plaintiff and in
defendant’s favour.
(SGD.) N. M. C. ABODAKPI
JUSTICE OF THE HIGH COURT
PLAINTIFF REPRESENT HIMSELF
FELIX QUARTEY FOR DEFENDANT –
PRESIDENT
dda@
|
