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JUDGMENT:
The Plaintiff claims against the
Defendants jointly and severally
for:-
“(a) An order for immediate
payment of GH¢48,120.00 being
cost of swivel chairs supplied
to the Defendants in year 2008
but not paid.
(b) Interest on the said
amount of GH¢48,120.00 from June
2008 to the date of last
payment”.
After the service of the writ
with its accompanying statement
of claim on the Defendants, an
appearance was entered and
thereafter a statement of
defence filed on behalf of the
Defendants.
Upon application, Judgment on
admission was entered for the
Plaintiff against the Defendants
in the sum of GH¢16,200 and
thereafter the remainder of the
claim was set down for hearing
as a result of which the
following issues were set down
for determination. That is:-
“(a) Whether it was 1356
pieces of swivel chairs that
were supplied or 948 pieces?
(b) Whether the unit price
of a chair was GH¢60 or GH¢50?
(c) Whether or not the
Defendants had paid GH¢3,500?
(d) Whether or not the
Defendants had sold all the
chairs or some were rejected?
(e) Whether or not the
Defendants are liable for the
sum of GH¢48,120.00?
At the trial, the Plaintiff gave
evidence through its
representative one Patrick Kofi
Asante and thereafter called two
witnesses to testify in support
of its case. The 2nd
Defendant who is the Chief
Executive Officer of the 1st
Defendant Company gave evidence
on his own behalf and also on
behalf of the 1st
Defendant after which one person
was invited to testify in
support of the Defendants.
In respect of the first issue
set out above, the evidence of
the Plaintiff is that together
with one Kofi Adjei a
consignment of 700 pieces of
swivel chairs were loaded from
the plaintiff’s ware house and
transported to the defendants’
shop. This supply was made on
the 13th June, 2008.
The testimony of the plaintiff
is to the effect that when the
goods arrived at the defendants’
premises, the 2nd
defendant personally arranged
for the off-loading of the goods
into the shop and personally
paid for the cost of
transportation.
According to the plaintiff’s
representative, 700 pieces of
swivel chairs were initially
supplied to the defendants. On
the second occasion, according
to the testimony of the
Plaintiff’s representative, a
quantity of 656 pieces of swivel
chairs was supplied bringing the
total to 1356. The Plaintiff’s
representative tendered in
evidence Exhibits A and A1 which
are invoices issued to one Kofi
Adjei dated 12th
June, 2008 and 18th
June, 2008 respectively.
Under cross examination, the
plaintiff testified that when
the 1st consignment
of 700 pieces were off loaded at
the defendants’ premises, the
said Kofi Adjei counted the
swivel chairs and found them to
be up to the 700 pieces.
I find from the evidence on
record that apart from the
Plaintiff’s representative
Patrick Kofi Asante, none of the
witnesses called by the
plaintiff was able to give any
positive evidence in respect of
the total quantity of swivel
chairs that were supplied to the
defendant. PW1 for instance
stated in his evidence in chief
that he was asked by Patrick
Kofi Asante to load and in fact
he loaded 250 pieces of the
swivel chairs from a warehouse
at Dansoman and brought them to
the premises of the defendants.
PW2 also admitted under cross
examination that he knows of
only the first consignment of
700 pieces that were delivered
to the defendant. Even then,
according to PW2, the quantity
supplied became a contentious
issue between the parties who
eventually settled on 700 pieces
representing the first
consignment.
The evidence of the 2nd
defendant who testified for
himself and on behalf of the 1st
defendant is that the total
quantity of swivel chairs
supplied by the Plaintiff
through Kofi Adjei which he
received was 948 pieces.
According to him the plaintiff
first supplied 602 pieces and
later 346 pieces bringing the
total number to 948 pieces. The
evidence of the 2nd
defendant was corroborated by
DW1 Mr. Ben Sackey who described
himself as the General Services
Manager of the 1st
defendant.
It is important to point out
that the plaintiff has not been
able to lead concrete evidence
to show that the said Kofi Adjei
acted as the agent of the
defendants herein. This is
particularly so in view of the
testimony of the defendants that
the said Kofi Adjei introduced
himself to them as a person who
has swivel chairs to sell and
indeed the swivel chairs were
supplied to them by the said
Kofi Adjei in the company of a
driver.
From the evidence on record the
court has no basis to hold the
said Kofi Adjei as having acted
as an agent for the defendants.
This was further buttressed by
the fact that exhibits A and A1
tendered by the plaintiff shows
that the goods were supplied to
Kofi Adjei who in turn supplied
same to the defendants. That
being so, I hold that there is
no basis to find that the
quantity of swivel chairs
supplied to the defendants sums
up to 1356 as claimed by the
plaintiff and as stated on
Exhibits A and A1. On the
contrary the defendants have
admitted receiving a total of
948 pieces of swivel chairs from
the plaintiff through Kofi Agyei
and the court finds that as a
fact.
The plaintiff has admitted at
paragraph 4 of its reply filed
on the 8th day of
December, 2009 that a quantity
of 554 pieces of the swivel
chairs were returned by the
defendants. This therefore
brings the quantity of swivel
chairs with the defendant down
to 394 pieces.
The next issue for consideration
is in respect of the agreed
price per unit of swivel chair.
The plaintiff says that the
swivel chairs were given to the
defendants at a price of GH¢60
per chair whereas the defendants
say the agreed price was GH¢50
per chair. Indeed there is no
concrete evidence from the
plaintiff in respect of the unit
price agreed upon. The
plaintiff is a limited liability
company and it is therefore not
unreasonable to expect that its
affairs would be managed in such
a way that a matter as simple as
the quantity of goods supplied
and the price per unit would be
left in no doubt. As it is the
court holds that the plaintiff
has not been able to discharge
the burden which the law places
on it to prove its claim on the
balance of probabilities. See
sections 14 and 17 of the
Evidence Act 1975 NRCD 323.
Apart from the contentious oral
evidence from the parties
regarding how much each swivel
chair was supplied to the
defendants there is no
documentary evidence to remove
the matter from any doubt.
The evidence of DW1 was that the
initial agreed price per unit
was GH¢70 but after some time
the defendants found that the
same type of swivel chairs were
being offered for retail at a
price of GH¢60 so the defendants
drew the attention of the
plaintiff to this fact
prevailing on the market and the
plaintiff agreed that the unit
price should be settled at GH¢50.
Even then, the goods could still
not be sold, so upon the
plaintiff’s request quantities
of 554 pieces of the swivel
chairs were returned to the
plaintiff. I have no reason to
disbelieve this piece of
evidence from the defendants in
view of the plaintiff’s
admission that 554 pieces of the
swivel chairs were returned to
them by the defendants.
I find therefore that the total
indebtedness of the defendants
to the plaintiff comes to 394
multiplied by GH¢50 and this
sums up to GH¢19,700.
Judgment on admission was
entered for the plaintiff
against the defendants in the
sum of GH¢16,200.00 on the 1st
day of February, 2010.
The defendants have averred in
paragraph 6 of their statement
of defence that they have paid a
sum of GH¢3500 to the
plaintiff. This averment has
however been denied by the
plaintiff in their reply at
paragraphs 6 and 7 where the
plaintiff has averred that the
defendants have never paid a
dime to the plaintiff.
It has been held in the case
Bank of West Africa Ltd. vs
Ackun [1963] 1 GLR 176@181 that
the party who asserts the
positive carries the burden to
lead evidence in proof of his
claim or assertion. Hence in
the instant matter, since the
defendants allege that they have
paid GH¢3500 to the plaintiff,
it is incumbent upon the
defendants to lead positive
evidence in proof of that
claim. It is sad commentary
however that not a single
receipt was tendered in evidence
by the defendants to prove their
claim of having paid GH¢3500 to
the plaintiff. I therefore hold
that there is no evidence on
record and indeed the defendants
have not succeeded in proving
that they have paid GH¢3500 to
the plaintiff.
Having therefore entered
judgment on admission in favour
of the plaintiff in respect of
GH¢16,200 the court holds that
the residue of the defendants’
indebtedness to the plaintiff
amounts to GH¢3500.
Judgment is therefore entered
for the plaintiff against the
defendants to recover cash the
sum of GH¢3500 together with
interest at the prevailing bank
rate from June 2008 to the date
of final payment.
Costs of GH¢2,000 will be
awarded the plaintiff against
the defendants.
(SGD)
S.K.A. ASIEDU, J.
JUSTICE OF THE HIGH COURT
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