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JUDGMENT:
The Plaintiff herein is claiming
against the Defendant, the
following reliefs:
1.
Recovery of the sum of
$26,787.13 or its cedi
equivalent from the Defendant
being the balance of money paid
to him by the Plaintiff in
respect of goods ordered through
the Defendant but which he
failed to deliver.
2.
Recovery of the sum of GH¢9,058
from the Defendant being customs
duties and clearing charges on
his goods which were paid by the
Plaintiff on the Defendant’s
behalf but which he has refused
to pay.
3.
Interest on the said amount at
the current bank rate from 1st
July 2008 to date of final
payment.
4.
Costs.
The case of the Plaintiff is
that Defendant agreed to buy
some goods from China for him
whereupon Plaintiff furnished
him with a list of the specific
items, quantity and quality to
be purchased. According to the
Plaintiff, it was agreed between
the parties that in the event
that the Defendant found a
better quality of any of the
items specifically ordered by
the Plaintiff, the Defendant was
to buy same and the Plaintiff
would bear the additional cost
that may arise there from. It
was also agreed between the
parties that the cost of
shipment, customs duty and any
incidental charges relating to
the goods would be borne by the
Plaintiff.
Plaintiff’s evidence was that
even though the agreement
between them was oral, a list of
the items Plaintiff ordered was
drawn up and the Defendant also
made some notes in Chinese.
These documents were tendered in
evidence as Exhibits “A” and
“A1”. Plaintiff stated further
that he made a first payment of
$20,000 to the Defendant; and
then a further payment of
$10,000 was sent to the
Defendant in China after he
called Plaintiff that he had
found other unlisted items which
he felt Plaintiff would like.
Plaintiff also made a payment of
$6,000 to the Defendant for
shipment of the goods; making a
total of $36,000. Plaintiff
further testified that some of
the items he requested for were
purchased by the Defendant, but
not all. And that even those
which he purchased were not of
the quality they had agreed
upon, but he accepted them
nonetheless. He tendered in
evidence a summary of the items
he ordered and those purchased
by Defendant as Exhibit “B”.
According to Plaintiff, before
shipment of the goods was made,
the Defendant faxed the invoices
which showed the prices of the
items bought in China, and
tendered in evidence the
invoices dated 19th
April 2008 and 26th
April 2008 as Exhibits “C” and
“C1” respectively. The
Plaintiff’s further testimony
was that when the items arrived
the Defendant was still in China
so he asked Plaintiff to take
responsibility for their
clearing from the Port, and that
when he returned the parties
would go into accounts because
half of the items in the
container including a vehicle
were for the Defendant. He
tendered in evidence a report on
the vehicle as exhibit “D”. He
also tendered in evidence
receipts for payment of customs
duty on the vehicle dated 18th
June, 2008 as Exhibit “E” and
payment for rent and demurrage
charges as Exhibit “F”, “F1” and
“F2”. It is Plaintiff case
therefore that Defendant owes
him almost $27,000 out of the
sum of $36,000 which he paid to
the Defendant for the goods. The
Defendant also owes him for the
customs duty he paid on the
goods and vehicle which belonged
to the Defendant.
Defendant admitted in his
pleadings that he agreed to buy
some goods from China for the
Plaintiff who then furnished him
with a list of the specific
items and quantity but not the
quality as Plaintiff just showed
pictures of what he wanted. The
Plaintiff gave him the
discretion to buy other items,
subject to payment by the
Plaintiff of any additional cost
that may arise there from. He
also stated that when he arrived
in China he sought and obtained
the consent of the Plaintiff
before placing additional orders
for those “nice” items for him.
He also admitted that Plaintiff
gave him an initial amount of
$20,000 and also paid him
$16,000 through Plaintiff’s
wife, but denied that the amount
of $16,000 was additional
payment. He contended that it
was an outstanding balance due
and owing by the Plaintiff to
the Defendant for the initial
orders which he shipped in two
containers.
The Defendant also admitted that
$6,000 out of the $16,000 paid
by the Plaintiff was meant for
shipment of the goods.
In his evidence, the Defendant
said that he and Plaintiff did
not agree on the prices of the
items which Plaintiff ordered
because he did not know the
prices before he went to China.
He said that the amount of
$20,000 which Plaintiff gave to
him was an estimate of how much
he required to buy the items,
but when he went to China, he
realized that the money was not
enough. He also said that
Plaintiff showed him a catalogue
containing the items the
Plaintiff wanted and not samples
of the items. Defendant
admitted that the items listed
in Exhibit “A” and “A1” were the
items the Plaintiff ordered and
the notes he made in Chinese.
The Defendant also admitted that
the Plaintiff gave his wife
$16,000 which she transferred to
his personal account and
described the said amount as the
second payment made by
Plaintiff. He also admitted
Exhibit “B” which is the summary
of items ordered and/or
purchased by the Defendant. The
Defendant testified that the
total cost of the items he
bought for the Plaintiff
including container freight,
hotel and transportation was
about $38,000.00. The Defendant
testified that he put his
personal items in the container
containing Plaintiffs goods.
The items included ten (10)
desktop computers, thirteen (13)
home theatres and a vehicle, and
that these items occupied about
half of one container.
According to the Defendant, he
used about 30% of the 120 footer
container and half of the 20
footer container for his items
and was therefore only liable to
pay $900 and $1,500 respectively
to the Plaintiff but has not as
yet paid the amounts to the
Plaintiff.
The Defendant testified that
Exhibit “C” was for the clearing
agent and tendered in evidence a
list he had drawn up himself of
the items he bought and their
prices (Exhibit “1”). He also
tendered in evidence documents
from the clearing agent
including duty and charges on
the items as Exhibit “2”
series. Defendant testified
that when attempts to settle the
matter between the parties
failed, the Plaintiff wrote a
letter to him to demand payment
of the sum of $16,000, and
tendered the letter as Exhibit
“3”. He denied that he owed
Plaintiff $26,787.13 but
conceded that the Plaintiff paid
all the duty on the goods
including the Defendants own.
Defendant also admitted under
cross-examination that he
introduced the agent who cleared
the goods to the Plaintiff and
he gave the original receipt to
the agent and the agent prepared
the invoices.
As stated above, the Defendant
admitted that Exhibit “A” was
the list of the items that
Plaintiff ordered through him.
The position of the law is that
where an adversary has admitted
a fact advantageous to the cause
of a party, the party does not
need any better evidence to
establish that fact than relying
on such admission. See In Re
Asere Stool [2005-2006] SCGLR
637. I will find that from
Exhibit “A”, Plaintiff did
furnish the Defendant with a
list of the specific items and
the quantity. Exhibit “A”
however did not state the
quality of the goods to be
bought by the Defendant. It
appears to me that the Plaintiff
himself abandoned his claim that
the parties agreed on the
quality of the items to be
purchased when he testified as
follows:
Q: Were the items purchased
by the Defendant?
A: Some were purchased, not
all
Q: Were they of the quality
you agreed upon?
A: those that were
purchased was not of the quality
even though they were not of the
quality, I accepted them.
On the issue as to whether or
not the sum of $36,000 was paid
by the Plaintiff to the
Defendant, in my opinion there
is abundant evidence adduced to
convince the Court that a total
sum of $36,000 was paid by the
Plaintiff to the Defendant for
the purchase and shipment of the
items from China. Also, the
evidence placed before the Court
with regard to the payment of
customs duty, which evidence was
not denied by the Defendant, was
that the Defendant while still
in China, asked the Plaintiff to
pay the customs duty in Ghana
including that payable by the
Defendant on his goods. As
stated above, it was the
Defendant who introduced to the
Plaintiff the clearing agent who
cleared the goods from the
Port. I will therefore find
that the Plaintiff did give an
amount of $36,000 to the
Defendant for the purchase and
shipment of the goods ordered
through the Defendant. I will
further find that the Plaintiff
paid the appropriate customs
duty and charges as agreed by
the parties.
Plaintiff’s case is that
Defendant owes him an amount of
$26,787.13 out of the amount of
$36,000 paid to him, being the
balance in respect of goods
ordered through the Defendant
but which he failed to deliver.
Defendant further owes Plaintiff
an amount of GH¢9,058.00 being
customs duty and clearing
charges which were paid by the
Plaintiff on behalf of the
Defendant.
It is trite learning that the
Plaintiff assumed the burden of
proving this claim. And per the
well-known decision in
Zabrama v. Segbedzi [1991] 2GLR
221, Plaintiff was required
to lead credible evidence to
enable the Court reach a
decision in his favour.
So, what evidence did the
Plaintiff lead in support of its
claim? Plaintiff tendered in
evidence a list of the goods he
ordered through the Defendant
(Exhibit “A”). Exhibit “B” is a
summary of items ordered and/or
purchased by Defendant. Exhibit
“B” did not state the prices of
the items. The Defendant
admitted both documents.
Plaintiff also tendered in
evidence as Exhibits “C”, “C1”
invoices which Plaintiff
contended were faxed to him from
China by Defendant. The
Defendant initially testified
that he gave the original
receipts for the goods to the
Plaintiff but the Plaintiff told
him he had misplaced them. This
the Plaintiff vehemently
denied. Defendant’s evidence
was that the said receipts were
given to the Plaintiff in the
presence of his wife and his
uncle-in-law. Defendant however
failed to call his wife and/or
uncle-in-law to corroborate his
evidence. In my opinion, these
two were material witnesses and
the failure by the Defendant to
call them was injurious to his
case. In addition to this,
Defendant subsequently testified
that he gave the original
receipts to the agent and the
agent prepared the invoices
(Exhibits “C” and “C1”) This is
what transpired:
Q: The clearing agent who
cleared the goods was your
agent?
A: Because I was in china,
the agent was introduced to
Plaintiff and the Plaintiff
agreed to use this agent.
Q: And the information on
the invoice, Exhibit “C” and
“C1” were supplied by you to
that agent?
A: No. We gave original
receipt to the agent and the
agent prepared the invoice and
the Plaintiff said it is okay
and they agreed on the duty.
Q: Plaintiff did not order
womens’ suit?
A: The women’s suit was
ordered by me.
Q: You also ordered mens’
shoes?
A: I ordered mens’ shoes
Q: So the information on
Exhibit C! Were provided by you?
A: This one is not the
price and the quantity, we give
the original receipts to the
agent and the agent prepared all
the invoices.
Q: So you gave the
information to the agent?
A: We showed the original
receipt to the agent.
Q: The agent that you
introduced?
A: The agent we introduced.
Q: So the information on
exhibit 1 is the information
which you provided to the agent?
A: No, this one, it was the
agent who worked on it. Not i
provided it.
Q: So the agent was your
agent?
A: We showed the original
receipt, the agent worked on the
invoices. We didn’t give this
to him.
Q: Because of the prices
you quoted there or the agent
quoted there?
A: It is the agent.
This is but just one example of
the inconsistencies in the
testimony of the Defendant. In
the case of Obeng v Bempomaa
[1992-93] Ghana Bar Law Reports,
1029, Lamptey J. remarked
that: “Inconsistencies,
though colourless may
cumulatively discredit the claim
of the proponent of the
evidence.”
I will find that Defendant’s
assertion that he handed over
the original receipts for the
goods he bought to the Plaintiff
has not been established.
So does this mean that the
Plaintiff has proved his case
that the Defendant owes him the
amounts he is claiming? Exhibits
“C” and “C1” are invoices which
Plaintiff testified were faxed
to him by the Defendant from
China, and were tendered in
evidence as proof of the prices
of the goods were bought for
Plaintiff. The Defendant denied
that the prices in the said
invoices were the actual prices
for the goods and tendered in
evidence (Exhibit “1”), a list
of items, quantities and prices
which he said represented what
he bought for the Plaintiff.
However, since the Defendant
admitted that he prepared
Exhibit “1” after the instant
suit had been filed, it makes
the said exhibit a self-serving
document and cannot carry any
probative value. See: Duah v
Yorkwa [1993-94] 1 GLR 217 at
223 CA.
I have taken note of the fact
that it is stated at the bottom
of the said invoices that they
contain the actual price of
goods contrary to the evidence
of the Defendant. This is what
they state:
“Declaration
I/We declare that this invoice
shows the actual price of goods
described and that all
particulars are true and
correct”
However, the said invoices cover
other items that did not belong
to the Plaintiff; specifically
100pcs women’s silk suits and 20
pairs men’s leather shoes. When
I totalled the amounts stated in
the invoices, I got $3,349.50.
And if I deduct this amount from
$36,000, I do not get the
$26,787.13 being claimed by the
Plaintiff. So, I am not sure if
Exhibits “C” and “C1” cover all
the items that were bought by
the Defendant for the
Plaintiff. Exhibit “C” and “C1”
are therefore not of much use in
proving the Plaintiff’s case.
As already indicated, even
though Plaintiff said that some
of the items bought by the
Defendant did not meet the
quality they agreed on, he
admitted that he had accepted
the said items nonetheless. The
alleged inferior quality of the
items can therefore not form the
basis of the Plaintiff’s claim.
The Defendant however admitted
to owing Plaintiff a total
amount of $2,400.00 as freight
for his goods which he added to
the Plaintiff’s for shipment.
The Defendant testified as
follows:
Q. You said earlier that you
used some of his space. Have
you sat down with him to give
value to the space that you
took?
A: Yes. When I came down
from China, I had already sat
down two times to calculate the
space, he says the car maximum,
I used half, that one I accept
and the other second container I
used like 30% even less than
30%, but I accept the 30%
space. I will pay for it.
Q: How much did you agree
to pay for that 30%?
A: It means 30% of
120-footer container and half 20
footer container.
Q: How much was the first
container?
A: 120 foot container is
3,000 dollars.
Q: so 30%?
A: It is 900 dollars. And
the first container I used half
so I have to pay 1,500 dollars.
Q: Have you paid that?
A: It is not paid yet.
When I came down I said let us
sit down; how much I owe you or
you owe me, we can sit down and
sort it out and later he delayed
and took all the containers and
paid the duty and some he
doesn’t like. And later he
wrote a letter that I had to pay
16 or something thousand
dollars. And I said that is too
much and he wants me to loose
plenty money.
In Exhibit “2”, which exhibit
was tendered in evidence by the
Defendant himself, the import
duty charged on Defendant’s
vehicle was $6,235.01; and this
the Defendant admitted in his
evidence. I will therefore find
that the Plaintiff has not
proved that Defendant owes him
an amount of $26,787.13. I will
however find that the Plaintiff
is owed by the Defendant, the
amounts of $2,400 and $6,235.01,
totalling $8,635.01which the
Defendant has admitted is due to
the Plaintiff.
With regard to the Plaintiff’s
claim for GH¢9,058.00 as customs
duty and clearing charges, the
Defendant agreed that the
Plaintiff is entitled to this
claim. This is what he said:
Q. The Plaintiff is saying
in his Statement of Claim that
he wanted
to recover from you $26,787.13.
This is the balance of the money
you should pay to him?
A: No. If I have to pay
27,000 dollars, then actually
then all the goods are free, you
take the goods and you don’t
want to pay money, it means free
goods, very funny. I am married
to a Ghanaian and a Ghanaian
wants to do free goods. It is
not good.
Q: He also says that you
owe him 9,058 Ghana Cedis which
is the Customs duties and
clearing charges on his goods.
That is money you should also
give to him?
A: The customs money we
didn’t sit down to check which
money but he paid all and that
one is fine. But my problem is
how much cost he has to separate
and the demurrage delayed too
much, he didn’t want to clear
the goods, he wants the goods to
be there. When I was in china I
called him and he said he would
pay demurrage so I just left
that to him. If he wanted to
delay one month, one year all
depends on him. But I
encouraged him to get it out as
soon as possible otherwise when
it stays at the port, demurrage,
container freight and other
charges will be charged. So at
the end, we would loose.
The evidence of the Defendant’s
own witness, Enoch Asare, the
clearing agent who cleared the
goods in question, was that the
shipping line made a mistake by
transferring the second
container which contained the
vehicle to a wrong freight
station so they could not clear
that container together with the
first one. It was his further
evidence that it was also found
that the first container which
contained ceramic tiles amongst
other items, contained more
items than had been entered in
the invoice. They were therefore
made to pay a penalty, but they
put in an application and a
waiver of 50% was given. The
Defendant’s evidence that the
Plaintiff caused delays in the
clearing of the goods is
therefore not substantiated. I
will therefore find that the
Plaintiff is entitled to its
claim for GH¢ 9,058.00, and will
so hold.
Plaintiff is also claiming
interest on the amounts being
claimed. The basis of awarding
interest on amounts due and
owing was succinctly stated by
the eminent Lord Denning in the
case of Harbutt’s Plasticine
v. Wayne Tank Co. Ltd [1970] 1
ALL ER 225 as follows:
“......it seems to me that the
basis for an award of interest
is that defendant has kept the
Plaintiff out of his money; and,
the defendant has had use of it
himself. So he ought to
compensate the Plaintiff
accordingly.”
Also in the Ghanaian case of
Royal Dutch Airlines (KLM) and
Another v. Farmex Ltd [1989-90]
2 GLR Adade Ag. CJ then
stated that the Plaintiff
therein being businessmen, if
the money had been paid to them
they would have been enabled to
trade with it and would have
ploughed back their profits from
the date of judgment in the High
Court, As the money had been
kept since that date, it was
only equitable that the
defendant be called upon to
disgorge whatever profits that
would have accrued to the
Plaintiff’s expense. I will
therefore find that Plaintiff is
entitled to interest on the
amounts due it from Defendant.
Plaintiff is also claiming
interest on the amounts being
claimed. The basis of awarding
interest on amounts due and
owing was succinctly stated by
the eminent Lord in the case of
Harbutt’s Plasticine v. Wayne
Tank Co. ltd [1970] 1 ALL ER 225
as follows:
“.... it seems to me that the
basis for an award of interest
is that Defendant has kept the
Plaintiff out of his money; and,
the Defendant has had use of it
himself. So he ought to
compensate the Plaintiff
accordingly.”
Also in the Ghanaian case of
Royal Dutch Airlines (KLM) and
Another v. Farmex Limited
[1989-90] 2 GLR Adade Ag. CJ
then stated that the Plaintiffs
therein being businessmen, if
the money had been paid to them
they would have been enabled to
trade with it and would have
ploughed back their profits from
the date of judgment in the High
Court. As the money had been
kept since that date it was only
equitable that the Defendant be
called upon to disgorge whatever
profits that would have accrued
to the Plaintiff’s expense. I
will therefore find that
Plaintiff is entitled to
interest on the amounts due it
from Defendant.
As stated above, the Defendant
has counterclaimed. It is trite
learning that the same standard
of proof as was required of the
Plaintiff in proving its claim
was required of the Defendant,
and he failed woefully to prove
his counter claim. His own
evidence was that there was
never an agreement that the
Plaintiff would pay for his air
ticket and accommodation.
However, after the Plaintiff
wrote to him to demand payment
of $16,000, he also decided to
make the claim for his ticket,
transportation, accommodation
etc. The Defendant did not lead
an iota of evidence to prove how
much he spent on the air ticket,
hotel accommodation,
transportation, and the other
claims. I will therefore dismiss
the Defendant’s counterclaim in
its entirety.
In conclusion, I will order the
Defendant to pay to the
Plaintiff the sums of $8,635.01
or its cedi equivalent, and GH¢9,058.00
together with interest at the
prevailing bank rate from 1st
July 2008 to date of final
payment.
Costs assessed at GH¢2,000
against the Defendant
(SGD)
BARBARA ACKAH-YENSU (J)
JUSTICE OF THE HIGH COURT
COUNSEL
CHARLES KUSI
- PLAINTIFF
AKU SHIKA DADZIE
- DEFENDANT |
