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JUDGMENT
1. This suit was
transferred and assigned to this
court by order of transfer under
the hand of the Ag. Chief
Justice dated 6th
August 2009.
2. By the said date of
transfer, the following judicial
events have taken place. The
Plaintiff had obtained default
judgment against the 1st
and 2nd Defendants on
16th May 2005 upon
the order of Richard Asamoah J.
(as he then was).
3. The 1st
and 2nd Defendants
had applied to set aside the
said judgment which application
was dismissed by the ruling of
the High Court Coram Asamoah J.
(as he then was) dated 29th
June 2005.
4. By notice dated 22nd
March 2005 and filed on 23rd
March 2005, the Plaintiff
discontinued the action against
the 3rd and 4th
Defendants with liberty to
apply.
5. By the date of
transfer of this suit to this
court aforesaid, the only
Defendant the Plaintiff seeks to
proceed against is the 5th
Defendant herein, who had filed
a Statement of Defence
independent of the other
Defendants on 15/2/2005.
6. In his writ filed on
24 – 1 – 2005, the Plaintiff
claims from the Defendants
jointly and severally as
follows:
“(a). An order for the
immediate refund of the sum of
¢281,944,000.00 (Two Hundred and
Eighty One Million, Nine Hundred
and Ninety Four Thousand Cedis)
being the remainder of
¢382,644,000.00 paid to the
Defendants upon request to
enable letters of credit to be
opened for the Plaintiff but
which was never done and yet the
money was diverted by them.
(b). Interest on the said
amount from 31st
August 2004 to date of final
payment.
(c). General Damages for
loss of expected profits if same
had been invested in any other
business of Plaintiff.
(d). Any other
relief as the court may deem
fit”
7. PLAINTIFF’S CASE
Plaintiff’s case as set up by
his pleadings is that, sometime
in May 2004, the 5th
Defendant advised him to apply
for an overdraft facility from
the Standard Chartered Bank then
employers of the 5th
Defendant and was granted a
facility of ¢400,000,000.00
(Four Hundred Million Cedis)
overdraft facility payable by
end of April 2005. Plaintiff
alleges that the 5th
Defendant advised him to release
¢382,644,720.00 out of the
facility he had obtained to some
persons presumably the 1st
to 4th Defendants to
assist him obtain the letters of
credit. On the 28/8/2004,
Plaintiff alleges that upon the
advise of the 5th
Defendant he issued a cheque in
the sum of ¢382,644,720.00 and
handed over same to the 5th
Defendant with instructions not
to hand over same to the other
Defendants until the letters of
credit had been opened.
Plaintiff claims that 5th
Defendant did not comply with
his instructions and paid the
said sum to the other Defendants
who eventually failed to
discharge on their obligations
to avail the Plaintiff the
letters of credit for which the
said sum was deposited with him.
8. The Plaintiff
testified that the 1st
and 2nd Defendants
have since refunded to Plaintiff
the sum of $11,000.00 only
equivalent to the sum of
¢102,300,000.00 and that the
Defendants including the 5th
Defendant have failed to make
good his demand for a refund of
the outstanding sum of
$30,322.00. The Plaintiff
alleges that the conduct of the
Defendants is by all standards
fraudulent and claims as per the
endorsement on the writ and the
statement of claim.
9. 5TH
DEFENDANT’S CASE
The 5th Defendant
denies all material allegations
by the Plaintiff against him. He
asserts that as a Customer
Accounts Relations Manager of
the Standard Charted Bank at all
material times to this suit, he
had a duty to provide customer
care and establishing contact
with customers to assist them in
their business. In consequence
of that duty, he came into
contact with the Plaintiff. He
averred that the Plaintiff had
at a particular time expressed
dissatisfaction with the
services of the bank, 5th
Defendant’s employers and had
threatened to close his account
therefor.
10. He further averred
that he had assisted the
Plaintiff to submit an
application for a facility of
¢1.2billion and though Plaintiff
was disappointed that only ¢400
million was approved, Plaintiff
was nevertheless grateful to
him. The 5th
Defendant admits introducing the
Plaintiff to the 1st
and 2nd Defendants
who he described as “reputed
to be in business as agent of
foreign principals who assist
importers with letters of credit
to enable them import goods into
the country”.
11. At paragraph 10 of the
Statement of Defence the 5th
Defendant avers “The 5th
Defendant states that he
genuinely believed that the said
Defendants (i.e. 1st
– 2nd Defendants)
were in a position to help
Plaintiff hence the
recommendation which has no
connection whatsoever with the
overdraft facility. Neither was
the recommendation made in the 5th
Defendant’s official capacity”.
12. The summary of the 5th
Defendant’s pleading in defence
is that, subsequent to the
introduction, Plaintiff dealt
with the other Defendants on his
own having negotiated fees for
their services and arising from
the said negotiations, came to 5th
Defendant’s bank and issued a
cheque for the sum of
¢382,644,720.00.
13. In further denial of
the Plaintiff’s allegations, the
5th Defendant
asserted that it was the
Plaintiff himself who made
arrangements for the 2nd
Defendant to collect the said
sum adding that the Plaintiff
himself while he could not
procure United States Dollars to
pay to the Defendants made
arrangements with a forex bureau
operator who picked Plaintiff’s
cedis and made available the
United States Dollars paid to
the Defendants.
14. The 5th
Defendant denies playing any
role in what he describes as a
private transaction between the
Plaintiff and the Defendants
exclusively. He denies in
entirety Plaintiff’s claims
against him describing same as
misconceived.
15. In the reply to 5th
Defendant’s Statement of
Defence, the Plaintiff joined
issues generally with the
averments of the 5th
Defendant asserting specifically
that it was the 5th
Defendant who directed him to
the Defendants with the
assurance that they were in a
position to assist Plaintiff in
establishing the letters of
credit. There is no doubt that
this fact has been expressly
stated in the 5th
Defendant’s pleading reproduced
above.
16. ISSUES FOR TRIAL
Upon the hearing of an
application for directions the
following issues were set down
for trial by the Plaintiff.
“(a). Whether or not the 5th
Defendant is liable to the
Plaintiff’s claims.
(b). Whether or not the 5th
Defendant was instrumental in
the Plaintiff’s dealings with
the 1st & 2nd
Defendants.
(c). Whether or not the 5th
Defendant was a party to the
deal involving the Plaintiff on
the one hand and the 1st
and 2nd Defendants on
the other.
(d). Whether or not the 5th
Defendant by his conduct
persuaded the Plaintiff to deal
with the 1st and 2nd
Defendants.
(e). Whether or not it was
the 5th Defendant who
handed over the money involved
to the 1st and 2nd
Defendants.
(f). Whether or not the
Plaintiff instructed the 5th
Defendant to hand over the money
at that material time even when
the 1st and 2nd
Defendants had not opened the
letters of credit for the
Plaintiff.
(g). Whether or not the 5th
Defendant’s conduct conflicted
with his duties as a bank
official.
(h). Whether or not the 5th
Defendant could have known that
the 1st & 2nd
Defendants could not deliver.
(i). Any
other issues arising from the
pleadings?.
17. DETERMINATION OF
ISSUES BY THE COURT.
In my view a determination of
some of the issues set down for
trial will effectively and
completely determine the dispute
between the parties.
18. It is provided under
Section 14 of the Evidence Act
(NRCD 323) as follows:
“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”.
19. In order to establish
a claim or provide a defence to
the claim therefore either party
ought to adduce evidence on the
facts and issues to be
determined by this court to the
prescribed standard provided by
statute.
20. The 5th
Defendant not having set up a
counterclaim therefore it is the
Plaintiff who carries the burden
of proving the facts he asserts
against the 5th
Defendant and the standard of
determining whether or not this
burden has been sufficiently
discharged is on the
“preponderance of the
probabilities” defined under
section 12(2) of the Evidence
Act as.
“That degree of certainty and
belief in the mind of the
tribunal of fact or the court by
which it is convinced that the
existence of a fact is more
probable than its non –
existence”.
21. This standard of proof
has received judicial approval
in the cases of ABABIO VRS.
AKWASI IV [1994 – 95] GBR 774
where Aikins JSC held at page
777 that:
“The general principle of law is
that it is the duty of a
Plaintiff to prove his case as
he must prove what he alleges.
In other words, it is the party
who raises in his pleadings an
issue essential to the success
of his case who assumes the
burden of proving it. The burden
only shifts to the defence to
lead sufficient evidence to tip
the scales in his favour when on
a particular issue, the
Plaintiff leads some evidence to
prove his claim. If the
Defendant succeeds in doing
this, he wins, if not he loses
on that particular issue”.
22. The above statement of
law confirms the often cited
dictum of Kpegah JA. (as he then
was) in the case of ZABRAMA VRS.
SEGBEDZI [1991] 2 GLR 221 at 224
where he said:
“a person who makes an averment
or assertion which is denied by
his opponent, has a burden to
establish that his averment or
assertion is true. And he does
not discharge this burden,
unless and until he leads
admissible and credible evidence
from which the fact or facts he
asserts can properly and safely
be inferred. The nature of each
averment and assertion
determines the degree and nature
of the burden”.
23. There being no
counterclaim to the action by
the 5th Defendant, it
is the Plaintiff who carries the
burden of proof and his evidence
will have to be evaluated and
weighed in accordance with the
prescribed standard of proof
provided by statute and case
law.
24. PLAINTIFF’S
EVIDENCE
Plaintiff’s evidence is that he
is a manager of a business
called Design Metal Works and
had known the 1st
Defendant through the 5th
Defendant. Plaintiff’s account
of the circumstances under which
he issued a cash cheque in the
sum of ¢382,641,720 verified by
Exhibit ‘B’ consistent with the
pleadings is that, it was the 5th
Defendant while at employee of
the Standard Chartered Bank Ltd.
who assured him of the ability
of the 1st and 2nd
Defendants to procure letters of
credit in his favour before he
paid the said sum to the
Defendants. Plaintiff tendered a
document admitted as Exhibit ‘C’
representing what the Defendants
made available to the Plaintiff
as the letters of credit they
had agreed to procure for the
benefit of the Plaintiff.
Describing Exhibit ‘C’ as ‘not
proper’ letters of credit
because it does not conform with
the standard particulars
contained in genuine letters of
credit, the Plaintiff tendered
Exhibits ‘D’ and ‘D1’ which
represent genuine letters of
credit established by the 5th
Defendant’s employers, the
Standard Chartered Bank Ltd. to
the Plaintiff.
25. Plaintiff further
testified that he left the
cheque as endorsed per Exhibit
‘B’ with the 5th
Defendant who cashed same and
paid the 1st and 2nd
Defendant after assuring
Plaintiff and upon Plaintiff’s
enquiry from him (5th
Defendant) that the 1st
and 2nd Defendants
have finished everything.
Plaintiff tendered Exhibit ‘E’
the statement of account of
Design Metal Works between 24th
August 2004 and 27th
August 2004 which verifies the
transaction debiting Plaintiff’s
account with the said value of
the cheque.
26. According to
Plaintiff, when the genuine
letters of credit he expected
from the 1st and 2nd
Defendants were not forthcoming,
he threatened to arrest the
Defendants whereupon the 5th
Defendant together with some
other Defendants refunded to him
the sum of U$11,000.00 which was
changed into cedis from a nearby
forex bureau resulting into a
cedi equivalent of ¢281,984,000.
Asked by his counsel whether he
is proceeding against the 5th
Defendant only because he gave
Exhibit ‘B’ to him, Plaintiff
testified that it was because he
had instructed 5th
Defendant not to release the
Exhibit ‘B’ to the other
Defendants until they have
satisfactorily discharged on
their obligation of securing
letters of credit for his
benefit which instruction the 5th
Defendant failed to comply with.
27. Plaintiff further
testified that the 5th
defendant subsequently informed
him that 1st and 2nd
Defendants had given he 5th
Defendant an Ecobank cheque in
the sum of about $41,000.00 and
upon invitation by the 5th
Defendant that he (Plaintiff)
should come for the cheque, he
declined insisting that the 5th
Defendant should present the
cheque for cash himself and pay
to Plaintiff. In order to
substantiate the allegation,
Plaintiff tendered Exhibit ‘F’ a
photocopy of cheque drawn on
Ecobank International Ltd. by 1st
Defendant in favour of
Plaintiff’s Design Metal Works
in the sum of U$41,322.00 which
according to Plaintiff remains
unpaid till date.
28. Concluding his
evidence, Plaintiff testified
that the 5th
Defendant is a Senior Bank
Manager who knows the rules of
banking and is therefore
consequently liable for the
relief sought against him.
29. Under cross
examination by 5th
Defendant’s counsel, Plaintiff
agreed that 5th
Defendant was not his employee
but there was commission payable
on the value of Exhibit ‘B’
which he gave to the 5th
Defendant and not the 1st
and 2nd Defendants.
30. During further cross
examination by 5th
Defendant’s counsel the
following evidence was elicited
from the Plaintiff:
“Q. I am putting it to you
that the 5th
Defendant only introduced you to
the 1st and 2nd
Defendants to assist you in your
request for letters of credit?
A. I know only Ronny (5th
Defendant) the rest I donot know
them. All what they did was
practically no work.
Q. I am putting it to you
that you know the 1st
and 2nd Defendants in
this matter?
A. I know
them but I donot know them as
good people.
Q. You negotiated the
business of obtaining the
letters of credit with 1st
Defendant company acting through
the 2nd Defendant?
A. They are not bankers
and they donot know anything
about how the letters of credit
are done. The 5th
Defendant being an experienced
banker should have known that
what was issued to him was not
genuine letters of credit?
31. To my mind, therein
lies the basis of Plaintiff’s
cause of action against the 5th
Defendant for which reason he
proceeds against the 5th
Defendant jointly and severally
with the other Defendants as
endorsed in the writ and
statement of claim.
Significantly the 5th
Defendant’s own pleading had
described the 1st and
2nd Defendants as
“reputed to be in business as
agents of foreign principals who
assist importers with letters of
credit to enable them import
goods into the country”. The
1st and 2nd
Defendants failed to live up to
5th Defendant’s
recommendation. The Plaintiff
acted upon it and incurred loss.
The Plaintiff no doubt has a
cause of action against the 5th
Defendant together with the 1st
and 2nd Defendants
for his losses.
32. The issue whether or
not the Plaintiff applied for
¢1.2billion and got an approval
of ¢400million which the
Plaintiff has denied is no
answer to the allegations made
by Plaintiff against the 5th
Defendant to the extent that he
introduced the 1st
and 2nd Defendants to
the Plaintiff and in Plaintiff’s
testimony as a senior banker,
the 5th Defendant
ought reasonably to have known
the ability of the 1st
and 2nd Defendant to
deliver on their obligation and
ought further to have known that
Exhibit ‘C’ represented to
Plaintiff by the 1st
and 2nd Defendants to
be the letters of credit
procured for the sum endorsed on
Exhibit ‘B’ are not genuine
credit letters established for
the benefit of the Plaintiff. It
is on that score Plaintiff found
this cause of action against the
Defendants 1st, 2nd
and 5th jointly and
severally.
33. Having denied under
cross examination that he signed
an agreement with the 1st
and 2nd Defendants
and having emphatically denied
prior knowledge of 1st
and 2nd Defendants
principal, I find that
consistent with his pleadings
the Plaintiff has discharged the
onus of proof on him and has
satisfied the prescribed
standard by statute and case law
authority on his burden of
persuasion. In consequence, I
think the Plaintiff has made a
case on the preponderance of the
probabilities and therefore 5th
Defendant assumes the burden of
contradicting same by evidence
that Plaintiff’s assertions and
testimony are untrue.
34. At the close of the
Plaintiff’s case therefore, the
5th Defendant’s
position has been appropriately
described by Brobbey JSC in the
case of ADJETEY AGBOSU & ORS.
VRS. KOTEY & ORS. also referred
to as IN RE: ASHALLEY BOTWE
LANDS [2003 – 2004] SCGLR 420
where he said:
“The effect of sections 11(1)
and 14 and similar sections in
the Evidence Decree 1975 may be
described as follows:
A litigant who is a Defendant in
a civil suit does not need to
prove anything. The Plaintiff
who took the Defendant to court
has to prove what he claims he
is entitled to from the
Defendant. At the same time, if
the court has to make a
determination of a fact or of an
issue, and that determination
depends on the evaluation of
facts and
evidence, the Defendant must
realize that, the determination
cannot be made on nothing. If
the Defendant desires the
determination to be made in his
favour, then he has a duty to
help his own cause or case by
adducing before the court such
facts or evidence that will
induce the determination to be
made in his favour………….”
35. I shall now examine 5th
Defendant’s evidence in order to
determine whether or not by the
evidence he has sufficiently
discharged himself and has
sufficiently contradicted the
evidence of the Plaintiff for a
determination of the issues set
down for trial in his favour.
36. 5TH
DEFENDANT’S EVIDENCE
The 5th Defendant
testified that he was working
with Standard Chartered Bank
Ltd. as a senior manager in the
Small and Medium scale
Enterprises Division where the
Plaintiff happened to be one of
the clients he dealt with. 5th
defendant testified that he had
helped the Plaintiff to
establish a number of letters of
credit and to acquire a loan
facility from the bank. The 5th
Defendant testified that when
his former employers could not
provide the Plaintiff with a
loan facility in the sum of
¢1.2billion and the Plaintiff
having shown him an invoice in
excess of $900,000.00 a
colleague of his in the bank at
the material time, introduced
the 1st Defendant to
him as a company which offered
assistance to Ghanaian importers
through their partners in the
United States. Consequently, he
introduced the Plaintiff to the
1st Defendant. The 5th
Defendant admitted that
Plaintiff came to his office and
left some money instructing that
he had finished negotiations
with the 1st and 2nd
Defendants after which according
to the 5th Defendant,
Plaintiff called the 2nd
Defendant to come for the said
money.
37. The 5th
Defendant denied receiving a
cheque from the Plaintiff as
alleged but testified that
Plaintiff had requested to
purchase some dollars from the
bank and when 5th
Defendant indicated he was not
in a position to assist,
Plaintiff called and informed
the 2nd Defendant who
arranged with a forex bureau
operator at an agreed rate. The
5th Defendant denied
cashing the cheque as alleged by
the Plaintiff and further denied
the Plaintiff’s assertion that
he was warned by Plaintiff to
keep the funds until the 1st
and 2nd Defendants
have delivered on the obligation
to procure genuine letters of
credit.
38. In answer to a
question in examination in chief
this is what the 5th
Defendant said:
“Q. What did you do in
your capacity as the one who
introduced the parties to make
sure that the problem is solved.
Tell the court?
A. I quietly went to the
2nd Defendant to tell
him that I did not want my name
to be dragged into the mud and
so I wanted everything to be
transparent. And so if he was
not in a position to do the
letters of credit for Mr. Somuah
he should refund the money to
him. And then he kept giving
promises that the letters of
credit will come from his
business partners in America.
After sometime it became so
clear that the letters of credit
was not forthcoming and so I
kept pushing him to pay back the
money to Mr. Somuah because he
was the one who received it and
must refund it”.
39. Concluding his
evidence in chief the 5th
Defendant testified as follows:
“My Lord the only thing I did in
this transaction was firstly to
introduce the Plaintiff to the 1st
and 2nd Defendants.
Apart from that the other thing
I did was to accept money from
the Plaintiff and hand it over
to the 2nd Defendant
in accordance with the
instructions of the Plaintiff.
And so I do not see where I
really was involved in this
matter that will require me to
pay the money to him. That was
the role I played”.
40. I think the 5th
Defendant has by this testimony
taken a simplistic view of the
role he played as if the
Plaintiff did not know him
firstly as an employee of the
Plaintiff’s bank in a senior
management position and who in
his own testimony, testified
that he had on previous
occasions assisted the Plaintiff
to procure letters of credit.
Consequently by logical
inference the 5th
Defendant ought reasonably to
appreciate the consequences of
the relationship he created
between the Plaintiff and the 1st
and 2nd Defendants
upon his own admitted
recommendation of 1st
and 2nd Defendants’
ability to deliver.
41. Unless I have
misconceived 5th
Defendant’s pleading and
testimony or I have erroneously
understood and evaluated same, I
donot think he can simply
extricate himself from the
consequences of the failure of
the 1st and 2nd
Defendants to deliver. While no
fraudulent motivation nor
financial gain has been
attributed to the 5th
Defendant’s role in the entire
transaction, that is only as far
as it goes. I should think that
being a person in a position of
senior management with the
Plaintiff’s bankers, he
compromised his fiducial duty
with his employers by involving
himself in the circumstances
giving rise to this suit and
will therefore be held liable
for the undesirable consequences
of the transaction he generated,
notwithstanding the fact that no
evidence was adduced to
establish fraud on his part nor
that he benefited in anyway from
the transaction.
42. Having so found, I
shall resolve issues (a), (b),
(c), (d), (e) and (g) in
Plaintiff’s favour and hold that
not only is the 5th
Defendant jointly liable for the
Plaintiff’s claims, but his
conduct was in conflict with his
duties as a bank official having
primarily known and dealt with
the Plaintiff as a customer of
the bank who were his employers
at the time.
43. During cross
examination of the 5th
Defendant by Plaintiff’s counsel
the following evidence was
adduced.
“Q. The representation
you made to the Plaintiff that
the 1st and 2nd
Defendants are capable of
establishing letters of credit
for him was false”
“A. That is not true. I
have earlier on said in this
court that I was introduced to
the 1st and 2nd
Defendants by a colleague and
based on the fact that the
colleague presented to me and
based on the interaction I had
with the 1st and 2nd
Defendant and the records I saw
as evidence I was convinced that
they were in a position to issue
letters of credit. Because they
have earlier on done some for
some people and the evidence was
in their office which convinced
me they could do it. Besides the
Plaintiff was taken to the 1st
and 2nd Defendants to
verify the truth for himself. He
had ample time to do the
verification and it took him a
longtime to come into conclusion
that his diligence was correct
and based on that he went into
the transaction. So it did not
take him a day it took him a
longtime to come into that
conclusion based on his own
findings”.
44. I donot think the
Plaintiff needs any additional
evidence to establish 5th
Defendant’s liability than the
testimony I have just
reproduced. My reasons are:
(i). Firstly: The claim
by the 5th Defendant
that 1st and 2nd
Defendants were introduced to
him by a colleague in the bank
where he was at all material
time an employee of, is not
supported by his pleading. If
the 5th Defendant
considered that fact material to
form the basis of his evidence
in defence, same ought to have
been pleaded to enable the
Plaintiff react appropriately. I
have no hesitation in concluding
that the assertion is an
afterthought. After all, the 5th
Defendant’s evidence is that
from his position as a manager
of Plaintiff’s bankers, he had
personally evaluated 1st
and 2nd Defendants
records and found them capable
of performing. They failed. His
role in my view is not one of
merely introducing the Plaintiff
to the 1st and 2nd
Defendants. Were it so, he did
not need to have evaluated 1st
and 2nd Defendants
ability to perform to encourage
the Plaintiff to proceed with
the transaction. To say the
least, 5th
Defendant’s poor judgment, makes
him directly liable for
Plaintiff’s losses.
(ii). As a senior banker,
and one who had rendered
services to the Plaintiff with
respect to establishing letters
of credit it sounds preposterous
for him to expect the Plaintiff
to apply any diligence he is
alleged Plaintiff carried out on
the 1st and 2nd
Defendants independent of the
evidence 5th
Defendant testified he gathered
about the 1st and 2nd
Defendants, in that, they have a
positive record of performance.
45. It would be reasonable
to conclude that for the 5th
Defendant to now assert that
Plaintiff is responsible for the
consequences of his alleged
personal judgment on the matter
is to me unfair and untrue.
46. I think that, the 5th
Defendant ought reasonably to
have anticipated the
consequences of his conduct and
cannot now absolve himself from
the liability arising therefrom.
47. When the Plaintiff’s
counsel asked the question.
“Q. You will agree with me
that when you told the Plaintiff
about the capability of the 1st
and 2nd Defendants to
establish the LC for him you
were talking about something
that dealt with your
professional competence or
expertise”.
The 5th
Defendant answered:
“A. Yes My Lord. I know
what letters of credit is and
when I see one I can know it is
a letter of credit.
48. As it has now turned
out, Exhibit ‘C’ presented to
the Plaintiff by the 1st
and 2nd Defendants
who were recommended by the 5th
Defendant to Plaintiff for their
ability to deliver, is nothing
but a worthless piece of paper
and for that reason 5th
Defendant stands jointly and
severally liable with the 1st
and 2nd Defendants
for the claim.
49. My conclusion is
further supported with this
evidence adduced during cross
examination of 5th
Defendant by Plaintiff’s
counsel.
“Q. You know for a fact
that as at now the letters of
credit was never established.
A. Yes My
Lord”.
50. In my evaluation of
the Plaintiff’s evidence and
comparing same with the evidence
of the 5th Defendant,
I have been guided by the
principle in the case of WIAFE
VRS. KOM [1973] 1GLR 240 at 245
where the court held as follows:
“In the assessing of evidence
and the weight to be given to
it, the correct principle is as
stated by Lord Mansfield that
all evidence is to be weighted
according to the proof, which it
was in the power of the one side
to produce and the power of the
other to have contradicted”.
In that respect the
5th Defendant failed
to impeach and contradict
Plaintiff’s evidence while he
also failed to adduce sufficient
evidence to tilt the scales in
his favour.
51. In consequence
therefore, 5th
Defendant’s own testimony
supported the legal basis of
Plaintiff’s claim against him
jointly and severally with the 1st
and 2nd Defendants.
52. Before I conclude, I
have to comment on the evidence
of the 2nd Defendant
who the 5th Defendant
found as a useful ally to call
as a witness to testify in his
defence. As I have earlier
observed the Plaintiff has
already obtained judgment
against the 2nd
Defendant who has jointly with
the 1st Defendant
company he runs, paid part of
the judgment debt while the 1st
Defendant had caused to be
issued Exhibit ‘F’ a United
States Dollar cheque in the sum
of U$41,322.00 drawn on the 1st
Defendant’s account which
remains unredeemed till date.
53. To my mind, while the
2nd Defendant’s
testimony was intended to
absolve the 5th
Defendant from liability, he
failed woefully to do so. He
contradicted the evidence of the
5th Defendant on the
role the latter played in the
circumstances giving rise to the
loss which the Plaintiff
undoubtedly incurred.
54. From the totality of
the evidence adduced, the 2nd
Defendant ‘DW1’ for the 5th
Defendant did not discharge
himself as a credible witness.
His conduct as an untruthful
witness was borne out of the
following evidence adduced
during his cross examination by
Plaintiff’s counsel.
“Q. After you failed to
deliver on your promise and
Plaintiff made a demand for
refund of his money from you,
you gave him an Ecobank cheque
is it not true?
A. I donot
remember.
Q. Have a
look at Exhibit ‘F’. have you
seen Exhibit ‘F’ before?
A. Yes it is
my first time of seeing it.
Judge: What you have
is a photocopy of a cheque but
is that your first time of
seeing that document?
Witness: As
in this document?
Judge:
What do you mean as in this
document?
Witness: The
cheque is a company’s cheque.
Judge: Is
that the first time you are
seeing it?
Witness: No.
Plaintiff’s counsel,
“Q. It is your company’s
cheque the photo impression of
your company’s cheque.
A. Yes My
Lord.
Q. Is your company cheque
and you used it to pay the
Plaintiff is that not so?
A. Yes My
Lord.
Q. Was the
cheque cleared?
A. No My
Lord”.
55. As I have earlier
observed ‘DW1’s attempt to deny
ever seeing exhibit ‘F’ did not
present him as a truthful and
credible witness and in
consequence, he contributed
nothing of value in assisting
the 5th Defendant
contradict the Plaintiff’s
claims against all of them
jointly and severally.
56. It was OLLENU JA. (as
he then was) who held in the
case of KYIAFI VRS. WONO [1967]
GLR 463 on the issue of
credibility of witnesses and
said:
“The question of impressiveness
and convincingness are products
of credibility and veracity. A
court becomes convinced,
impressed, or unimpressed with
oral evidence according to the
opinion it forms of the veracity
of witnesses…………….”
57. I have observed the
‘DW1’ from his position as a
witness on oath and am not
impressed that he is truthful
and credible. His testimony in
my view, does not represent the
truth of the events. His attempt
to deny knowledge of Exhibit ‘F’
is unconscionable and not
expected of a witness under oath
same being a cheque issued by
his own company in purported
payment to Plaintiff for the
very claim against the 5th
Defendant he had mounted the
witness box to testify on. Worse
still, he and the 1st
Defendant on which account the
cheque was drawn, are judgment
debtors arising from the same
action.
58. In the premises, I
find for the Plaintiff, and for
all the reasons I have earlier
set out in this judgment, I hold
that the Plaintiff succeeds and
is entitled to recover from the
5th Defendant jointly
and severally with the 1st
and 2nd Defendants,
the outstanding balance of the
judgment debt with respect to
the endorsement in relief (a) of
the statement of claim with
interest thereon from 31st
August 2004 till date of final
payment.
59. The Plaintiff has
endorsed a claim for general
damages for loss of expected
profits. No evidence has been
adduced by the Plaintiff to
establish the quantum of loss
expected from business. While I
think the Plaintiff may be
entitled to some damages, any
expected profit from the
principal sum claimed would have
been adequately compensated for
by the award of interest from
the date the Plaintiff himself
endorsed in the statement of
claim. To award him damages for
loss of expected profits, would
certainly amount to unjust
enrichment from a cause of
action already adequately
addressed by the grant of
reliefs (a) and (b) in favour of
Plaintiff.
60. The claim for damages
for loss of expected profit is
consequently dismissed.
I shall award costs of GH¢500.00
in favour of the Plaintiff
against the 5th
Defendant.
(SGD.)
JUSTICE I. O. TANKO AMADU
JUSTICE OF THE HIGH COURT
COUNSEL:
KWAME YANKYERA ESQ. (FOR
PLAINTIFF)
MOHAMMED SAHNOON ESQ. (FOR 5TH
DEFENDANT) |
