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By a writ of
summons issued on 17th February
2009 the Plaintiff company
claimed against the Defendants;
a) The sum of Two Hundred and
Eighty Two Thousand Euros
(282000 Euros) or its cedi
equivalent. b) Damages c)
Interest on the said sum at the
Euro Central Bank Commercial
lending rate if payment is in
Euros and at the prevailing bank
rate if payment is in cedis from
1st April 2008 till date of
final payment. The Plaintiff is
a company registered under the
laws of Ghana and at all
material times carry on business
as road and building
contractors. The 1st Defendant
is a company registered under
the laws of Ghana and carry on
business as retailers of heavy
duty vehicles and other
industrial machinery and
equipment. The 2nd Defendant is
a company registered under the
laws of the Netherlands and also
engaged in business as retailers
and exporters of heavy duty
vehicles and industrial
machinery and equipment. The
Plaintiff's case as shown by its
pleadings and evidence was that
sometime in 2007, it was awarded
a contract to construct the
Kumasi to Barekese road in the
Ashanti Region. As part of the
tendering process the Plaintiff
had to indicate its equipment
strength and the contract
requirement was that the
plaintiff needed a minimum
equipment requirement of 7 heavy
duty trucks to be able to
execute the contract. It is the
case of the plaintiff that it
placed an order for seven(7)
Mercedes Benz 3340 trucks with
the 1st defendant which acted on
behalf of the 2nd defendant and
agreed to supply the 7 Mercedes
Benz 3340 trucks at a unit price
of Eighty Seven Thousand Euros
(87000 Euros) totaling 609,000
Euros. On the instructions of
the 1st defendant, the Plaintiff
in March 2008 transferred an
amount of 609000 Euros into the
Account of the 2nd Defendant at
Fortes Bank in Holland. The
defendants were unable to supply
the trucks. The Managing
Director of the Plaintiff
travelled to Holland to discuss
the issue of the defendants
inability to supply the said
trucks. At the said meeting, the
Defendant said they could not
supply the Benz 3340 Model they
had agreed to supply and agreed
with Plaintiff to rather supply
Benz 3330 model at a unit price
of Eighty Thousand Euros (80000
Euros). It is the case of the
Plaintiff that the Defendants
supplied only four (4) of the
Benz 3330 at a total cost of
330000 Euros and have in spite
of repeated demands failed to
supply the remaining three
trucks to the Plaintiff hence
the commencement of this action.
The 1st Defendant denies
liability for the said amount
claimed by the Plaintiff. It is
the case of the 1st Defendant
that it does not represent the
2nd Defendant's business
interest in Ghana but is only a
sales canvassing agent for
retailers and manufacturers of
heavy duty vehicles, industrial
machinery and equipment. Whilst
admitting that the Plaintiff
paid an amount of Euro 609000
into the account of the 2nd
Defendant for the supply of 7
Mercedes Benz 3340 trucks, it is
the case of the 1st Defendant
that the transfer of the said
amount for the payment of the
seven trucks was done by the
Plaintiff on its own accord and
not on the instruction of the
1st Defendant. Accordingly the
1st Defendant contends that it
was solely the responsibility
and obligation of the 2nd
Defendant to deliver the trucks
to the Plaintiff and that it
(the 1st Defendant) was not a
party to the delivery of the
trucks and therefore not liable
to the Plaintiff’s claim. On the
other hand the 2nd Defendant
does not deny receiving the Sum
of Euro 609000 from the
Plaintiff in March 2008. It is
the case of the 2nd Defendant
however that the sum of Euro
609000 was paid by the Plaintiff
on behalf of the 1st Defendant
to offset the outstanding
indebtedness of the 1st
Defendant to the 2nd Defendant
in respect of previous
transaction between the 1st and
2ndDefendant.Further the 2nd
Defendant contends that the 1st
Defendant gave it an undertaking
which had the effect of ensuring
that payments could be made
directly by customers of B & P
lmpex to Big Machinery to offset
1st defendant's outstanding
indebtedness and that it was on
the basis of that arrangement
that the payment made by the
plaintiff for the seven trucks
was considered by the 2nd
defendant as having been
received from B&P Impex (the 1st
defendant) and not from Cymain
Ghana Ltd (the plaintiff
herein). The 2nd defendant
therefore denied the plaintiffs
claim. At the Pie-Trial
Settlement Conference the
following issues were set down
as the issues for determination.
1) Whether or not plaintiff is
entitled to its claim. 2)
Whether or not the plaintiff is
bound by the terms of a) The
undertaking given by the 1st
defendant in favour of the 2nd
defendant on 5th January 2008.
b) The declaration dated 2nd
April 2009 made by the 1st
defendant in favour of the 2nd
defendant 3) Whether or not the
plaintiff is entitled to a claim
of damages against the
defendants jointly and
severally. 4) Whether or not the
1st defendant is a full and
proper agent of the 2nd
defendant with authority to act
on behalf of the 2nd defendant
or the 1st defendant was merely
a canvassing agent of the 2nd
defendant. 5) Whether or not
plaintiff is entitled to any
damages from the 1st defendant
arising out of the Barekese to
Kumasi road contract. 6) Whether
or not the plaintiff is entitled
to interest. 7) Whether or not
1st defendant owed any
obligation to the plaintiff to
deliver trucks. 8) Whether or
not the 1st defendant gave an
undertaking dated 5th January
2008 which ensured that payments
could be made directly by its
customers to the 2nd defendant
to offset its outstanding
indebtedness. 9) Whether or not
the 2nd defendant was aware that
the money transferred into its
account was for the payment of
the Mercedes Benz trucks and not
to offset indebtedness of the
1st defendant to it. 10) Whether
or not the 1st defendant made a
declaration dated April 2009
affirming that the payment made
on 13th March 2008 by plaintiff
to the 2nd defendant should be
considered as a payment for B&P
Impex Ltd. 1 1) Any other issues
arising from the pleadings. In
BISI AND OTHERS VRS TABIRI alias
ASARE (1987-88) 1GLR 360 it was
held in respect of the standard
of proof in a civil case in
holding 2 that " the standard of
proof required of a plaintiff in
a civil action is to lead
evidence as will tilt in his
favour the balance of
probability on the particular
issues" Section 11(1) and (4) of
the Evidence Act 1975 (NRCD 323)
defines the burden of producing
evidence and deals with the
standard of proof in civil cases
in the following terms: “ 1 1(1)
For the purpose of this Decree
the burden of producing evidence
means the obligation of a party
to introduce sufficient evidence
to avoid a ruling against him on
an issue 11(4) In other
circumstances the burden of
producing evidence requires a
party to produce sufficient
evidence so that on all the
evidence a reasonable mind could
conclude that the existence of a
fact was more probable that its
non-existence" Also Section 14
of the Act which deals with the
allocation of the burden of
persuasion provides: "14 Except
as otherwise provided by law
unless and until it is shifted a
party has the burden of
persuasion as to each fact the
existence or non-existence of
which is essential to the claim
or defence he is asserting"
Although the plaintiff has to
lead evidence to tilt in his
favour the balance of
probabilities, "the burden of
producing evidence was not fixed
but shifted from party to party
depending on the issues asserted
or denied in the case" See in Re
Ashalley Botwe Lands; Adjetey
Agbosu and others vrs Kotey and
others (2003 - 2004) SCGLR 420.
The plaintiff company gave
evidence through its Managing
Director Mr. Cyril Mainoo. His
evidence was that he ordered
seven (7) Mercedes Benz 3340
trucks from the 2nd defendant
through its local agent the 1st
defendant. He tendered in
evidence exhibit A a Proforma
Invoice from the 2nd defendant
dated 11th January 2008 in
respect of the transaction. This
Proforma invoice Exhibit A
showed that each of the seven
(7) trucks had a unit price of
87000 Euros thus, the total
invoice price for the seven (7)
trucks was Euro 609000. Again
the plaintiff also tendered an
invoice from the 1st defendant
in respect of the same
transaction. The invoice from
the 1st defendant dated 21st
March 2008 was tendered in
evidence as Exhibit M. Exhibit M
had the same details as Exhibit
A in respect of the price of the
seven (7) Mercedes Benz trucks
and the total cost of Euro
609000. The plaintiff's evidence
also showed that based on the
Proforma Invoice and
instructions from the 1st
defendant he authorized its
bankers to transfer the sum of
609000 Euros into the accounts
of the 2nd defendant in Holland.
He tendered in evidence Exhibit
B the letter authorizing his
bankers the Agricultural
Development Bank to transfer the
said sum of 609000 Euros from
the plaintiffs accounts to the
2nd defendants account at Fortes
Bank, Breda, The Netherlands.
This letter of authorization is
dated 10th March 2008. The
plaintiff also tendered in
evidence as Exhibit C a transfer
Advice from his bankers the
Agricultural Development Bank
confirming that the said
transfer of Euro 609000 into the
2nd defendant's Accounts at
Fortes Bank Holland had been
effected. Exhibit C the transfer
advice is dated 12th March 2008
at 15:54 hrs. The 2nd defendant
company gave evidence through
Mr. Henri Jegeen a Salesman of
the company who is resident in
Holland. He admitted that the
2nd defendant received the sum
of Euros 609000 from the
Agricultural Development Bank
Accra. Under cross-examination
by counsel for the plaintiff Mr.
Jegeen said that the amount of
Euro 609,000 wired from
Agricultural Development Bank
was received in the 2nd
defendant's Account with Fortes
Bank on 13th March 2008, Under
cross-examination by counsel for
the plaintiff the following
transpired between counsel and
Mr. Jegeen Q: You said that
60900 Euros was wired into your
accounts is that correct? A:
That is correct. Q: When did you
receive it in your Account?. A:
Beginning of March 2008. Q: Can
you give a specific date? A.
13th March 2008. Q And I guess
your bank is Fortes Bank in the
Netherlands is that correct: A;
That is correct. Q: take a look
at Exhibit C, is that your
confirmation message involving
the transfer of the Euro 609,000
into your Account? A: Yes. Q:
Look at the column that says
remittance information and read
what is under remittance
information? A: Read out in
court. Q: So the Pro forma
Invoice that started the whole
process that eventually led to
the wiring of the sum of Euro
609000 is the one that appears
on Exhibit C is that correct? A:
That is not correct. Q: So you
want the Court to believe that
you received a sum of money in
your account without giving Pro
forma Invoice is that correct?
A: This money comes from the
invoice that we set to B&P here
in Ghana. Q: But you will agree
with me that the money was
transferred from the account of
Cymain Ghana Ltd? A: That is
correct, this 609000 Euros comes
from Cymain Ghana Ltd. Before
going further I should state
that Mr. HehriJegeen was an
extremely untruthful witness.
Especially under
cross-examination by both
counsel for the plaintiff and
1st defendant Mr. Jegeen clearly
came out as an untruthful
witness. The transfer Advice
from his own bankers Exhibit C
clearly showed that the sum of
609000 Euros wired into the 2nd
defendant Account was payment in
respect of the Proforma Invoice
dated 11 January 2008 (Exhibit
A) which the 2nd defendant had
sent to the plaintiff and yet he
denied this obvious fact. I find
on the evidence that the sum of
609000 Euros was transferred
from the plaintiff Account with
Agricultural Development Bank
Accra to the 2nd defendant's
Accounts at Fortes Bank in
Holland on 13th March 2008. I
find further that the amount of
Euro 609000 was the payment for
the seven (7) Mercedes Benz 3340
trucks the plaintiff had ordered
from the 2nd defendant through
the 1st defendant. The evidence
of all the parties shows that
inspire of the payment of the
sum of 609000 Euros by the
plaintiff to the 2nd defendant
they were unable to deliver the
seven (7) Benz 3340 trucks to
the plaintiff. The plaintiff's
witness Mr. Cyril Mainoo said as
a result of the inability of the
2nd defendant to supply the
seven (7) trucks to him, he went
to Holland with the 1st
defendant to find out from the
2nd defendant the reason for the
inability to supply the trucks.
At the meeting in Holland the
2nd defendant's Director
indicated that they were having
problems with their supplies
from Turkey. In his evidence the
Chief Executive Officer of the
1st defendant company Benji
Kwesi Tachie denied being
present at the meeting in
Holland. In respect of this
meeting in Holland the plaintiff
had pleaded in paragraph 13 of
their statement of claim as
follows; It 13 The plaintiff's
Managing Director had to travel
to the Netherlands to hold
discussions with-the defendants
on their inability to deliver
the said trucks" In their
statement of defence filed on
9th April 2009 the 1st defendant
had pleaded in paragraph 10
thereof as follows; 10 In
response to paragraph 13 of the
statement of claim the 1st
defendant avers that it sent a
representative to the
Netherlands to be part of the
meeting between the plaintiff
and the 2nd defendant in a bid
to find a business solution to
the transaction in the best
interest of all parties
concerned" A party is bound by
its pleadings. On the basis of
the pleadings I reject as untrue
and an afterthought the evidence
of the 1st defendant witness
Benji Kwesi Tachie that the 1st
defendant was not represented at
the meeting in Holland. I find
on the evidence that the 1st
defendant was represented at the
meeting in Holland to discuss
the defendant's inability to
deliver the trucks to the
plaintiff. The evidence shows
that at the meeting in Holland
the 2nd defendant indicated they
were having problems with their
supplies from Turkey. It was
therefore agreed at that meeting
by the three (3) parties that
instead of the Mercedes Benz
3340 trucks, the defendants will
rather supply seven (7) Mercedes
Benz 3330 model. The evidence
shows that the Benz 3330 was
much smaller than the 3340 model
as a result of which it was
agreed that the 3330 trucks will
be sold to the plaintiff at Euro
80000 per truck instead of the
87000 Euros per truck for the
3340 model. The undisputed
evidence shows that eventually
the defendants rather supplied
four (4) smaller Mercedes Benz
3028 trucks and not even the
3330 model agreed on. This is
borne out by the Bill of Lading
covering the shipment of the
trucks Exhibit E. These four (4)
Mercedes Benz 3028 trucks were
nevertheless sold at 80000 Euros
each. The defendants have since
failed to supply the remaining 3
trucks to the plaintiff. The
cost of the 4 trucks supplied
total 320,000 Euros leaving a
balance of Euros 289,000 to be
refunded to the plaintiff by the
defendants out of the Euros
609,000 paid by the plaintiff.
The defendants have refused to
refund this amount to the
plaintiff. Although the actual
amount outstanding is Euro
289,000 the plaintiff rather
claimed a lower amount of
282,000 Euros. In passing I wish
to deal with the nature of the
business relationship between
the 1st and 2nd defendant which
has been raised in this case.
Whereas the plaintiff says the
1st defendant represents the
business interest of the
2nddefendant in Ghana, the 1st
defendant says it is only a
canvassing agent for the 2nd
defendant. I think what the
evidence shows is that the 1st
defendant is s commission agent
of the 2nd defendant in Ghana.
It looks for customers in Ghana
for the 2nd defendant's
machinery and equipments and
makes orders on behalf of the
customers and is paid commission
by the 2nd defendant for orders
made by customers. In the case
of the plaintiff however it is
clear that the payment for the
trucks ordered from the
2nddefendant through the 1st
defendant was paid directly to
the 2nd defendant on the
instruction of the 1st
defendant. As can be seen from
their respective statement of
defence and the evidence both
defendants do not deny that the
plaintiff is entitled to receive
this amount of 282,000 Euros
being the difference between the
60900 Euros paid and the cost of
the 4 Mercedes Benz 3028 trucks
supplied which is 320,000 Euros.
Each defendant however says the
debt must be paid by the other
defendant, that is each
defendant is shifting the
liability unto the other. The
1st defendant says that it is
the 2nd defendant which received
the payment and should therefore
be the one to pay. The 2nd
defendant on the other hand says
the debt should be paid by the
1st defendant. The basis of the
2nd defendants denial of
liability is set out in
paragraph 6 and 7 of the
statement of defence as follows:
“ 6 Save that in 2008 the
plaintiff paid some monies on
behalf of the 1st defendant to
the 2nd defendant to offset the
outstanding indebtedness of B&P
Impex Ltd to Big Machinery BV in
previous transaction paragraph
8,9,10,11,12,13,14,15, 16 and 17
of the statement of defence are
denied. 7 In further answer to
the said paragraph 8 to 17 of
the statement of claim the 2nd
defendant avers as follows: I)
Before the instant transaction
which has given rise to this
dispute the 1st defendant was
already indebted to Big
Machinery BV for outstanding
payments in respect of previous
transactions involving delivery
of equipment dating back to
April 2007 including an amount
of Euros 232,000 for delivery of
brand new Mercedes Benz Axor
3340 trucks as per a Pro forma
Invoice dated 29th October 2007.
Ii Since the defendant did not
receive full payment for the
previous equipment delivered the
1st defendant acting per its
Chief Executive Mr. Kwesi Tachie
gave it an undertaking dated 5th
January 2008 which had the
effect of ensuring that payments
could be made directly by
customers of B&P Impex Ltd to
Big Machinery B V to offset 1st
defendants outstanding
indebtedness to 2nd defendant.
iii I t was on the basis of this
arrangement that when the
plaintiff purchased the seven
trucks from the 1st defendant as
per invoice No 0029 the payment
it made on behalf of B&P Impex
Ltd to Big Machinery BV was
considered by defendants as
having been received from B&P
Impex Ltd and not from Cymain
Ghana Ltd iv Consequently big
machinery delivered 4 out of the
7 trucks to B&P impex Ltd which
in turn made a declaration dated
April 2009 affirming that the
payment made on 13th March 2008
by Cymain Ghana Ltd to the 2nd
defendant should be considered
as a payment from B&P Impex Ltd
because settlement would be
arranged in due course between
B&P Impex Ltd and Cymain Ghana
Ltd in accordance with the
aforementioned undertaking. 8
2nd defendant is therefore not
indebted to Cymain Ghana Ltd as
the plaintiff would want this
Honourable court to believe, As
soon as the 1st defendant
settles its current outstanding
indebtedness to the 2nd
defendant and pays for the
remaining three trucks Big
Machinery will promptly deliver
them for the dispute to be
resolved" The undertaking signed
by the 1st defendant and
referred to in paragraph 7(ii)
of the 2nd defendant's statement
of defence was tendered in
evidence by the 2nd defendant as
Exhibit 2. Exhibit 2 is dated
5th January 2008 and for the
avoidance of doubt I set it out
in extenso: Dated 5th January
2008 To whom it may concern I
hereby declare that I am not
working as an agent for BIG
MACHINERY BV. I am doing
business on my own name and risk
under the company name B&P Impex
Ltd. Whenever clients of B&P
Impex Ltd make payments to BIG
MACHINERY BV, these payments are
to be considered as payments
from B&P Impex Ltd. Big
Machinery will only invoice
directly to B&P Impex and will
not directly contact the clients
of B&P Impex Ltd. Settlement
between B&P Impex Ltd and his
client will be arranged in
Ghana. B&P Impex Ltd Signed by
Sgd Kwesi Tachie owner of B&P
Passport No NVL7JL 183 “ It is
the sentence whenever clients of
B&P Impex Ltd make payments to
BIG MACHINERY, these payments
are to be considered as payments
from B&P Impex Ltd in Exhibit 2
that is the bases for the 2nd
defendant's contention that they
considered the payment of
609,000 Euros made by Cymain
Ghana Ltd to them on 13th March
2008 to be a payment made by B&P
Impex Ltd. Whatever
interpretation one might put on
Exhibit 2, sight should not be
lost of the fact that the
plaintiff is not a party or a
signatory to Exhibit 2. Exhibit
2 is a document signed solely by
the 1st defendant and the
contents in my view cannot bind
the plaintiff. Indeed the
evidence shows that the
plaintiff was not even aware of
the existence of Exhibit 2 at
the time this suit was
instituted. It beats my
understanding how a payment of a
colossal amount of 609000 Euros
by the plaintiff to the 2nd
defendant for 7 trucks is by
stroke of the 1st defendant pen
considered a payment made by the
1st defendant by both the 1st
and 2nd defendant. The defence
of the 2nd defendant that they
considered the payment by the
plaintiff to be a payment by the
1st defendant by virtue of
Exhibit 2 is baseless and
spurious and is a mischievous
attempt to avoid liability.
Strangely enough the 1st
defendant by its conduct also
created the impression that the
payment made by the plaintiff
should be considered as a
payment from the 1st defendant.
Apart from Exhibit 2, when the
1st defendant prepared a
statement of Accounts to the
2nddefendant on 2nd April 2009,
the 1st defendant included the
sum of 609,000 Euros made by the
plaintiff on 13th March 2008 as
payment made by the 1st
defendant. That statement of
Accounts was tendered by the 2nd
defendant in evidence as Exhibit
3. The last paragraph of Exhibit
3 is instructive: that paragraph
states: I also declare that I
received the 4 Mercedes Benz
trucks 3028B as invoiced by
invoice number 20080535. The
payment made on 13th March 2008
was done by Cymain Ghana Ltd but
must be considered as payment
from B&P Impex because
settlement will be arranged
between B&P Impex and Cymain
Ghana Ltd in Ghana. This is in
accordance with the statement]
signed on 5th January 2008 B&P
Impex Ltd (signed)" It is worth
remembering that the statement
signed on 5th Jahuary 2008 by
the 1st defendant is Exhibit 2,
the undertaking. Having stated
in no uncertain terms in Exhibit
3 that the payment made by the
Cymain Ghana Ltd should be
considered as payment from B&P
Impex because settlement will be
arranged between B&P Impex Ltd
and Cymain Ghana Ltd in Ghana,
and having used the said sum of
609000 Euros in its Statement of
Accounts with the 2nd defendant
Exhibit 3 to reduce its total
indebtedness to the 2nd
defendant, the 1st defendant now
domes to this court and says it
is not liable for the said
indebtedness. Both defendants
cannot be permitted to shift
liability unto each other. I
hold that both defendants are
jointly and severally liable for
the sum of 282,000 Euros claimed
by the plaintiff. The evidence
shows that the amount of 609000
was transferred into the Account
of the 2nd defendant on 13th
March 2008. Interest payment on
the sum of 282,000 Euros should
therefore start from that date.
The plaintiff has also claimed
damages arising from the failure
of the defendant to supply the 3
trucks. It is the case of the
plaintiff that the trucks were
ordered to be used to execute
the Kumasi-Barekese Road project
and that when the defendants
failed to supply the trucks he
had to hire a replacement
vehicle for use in the project
and tendered the Road Contract
as Exhibit H. He also tendered
receipts in respect of the hire
of the trucks Exhibit G series.
It is my view however that the
award of interest from the 13th
March 2008 to date of final
payment is adequate compensation
to the plaintiff. Relief (b) as
endorsed on the writ of summons
is hereby refused. Judgement is
accordingly entered in favour of
the plaintiff against the
defendants jointly and severally
for relief (a) and (c) as
endorsed on the Writ of Summons.
Agreed cost of GH¢14,000 against
each defendant. COUNSEL YAW
BOAFO FOR THE PLAINTIFF Nil ODOI
ODOTEI FOR THE 1ST DEFENDANT
PETER ZWENNES FOR THE 2ND
DEFENDANT |
