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The
plaintiff's case against the
defendant is that he supplied
various items to the defendant
between 2006 and 2008 valued at
GH¢24,545.00. He tendered
exhibits A to A7 as the delivery
notes signed by the defendant
when the items listed thereon
were supplied to and received by
the defendant. The plaintiff
went on to allege that the
defendant paid GH¢3,772 leaving
a balance of GH¢20,773.00 which
plaintiff prays this court to
recover from the defendant with
interest from 2006 to date of
final payment. The defendant
admits that plaintiff supplied
goods to both his business and
his household over the same
period alleged by plaintiff but
denied that he owed plaintiff
the quantum of money claimed. He
admitted that he had paid the GH¢3,772
alleged by plaintiff but alleged
that the value of the items
supplied by plaintiff was GH¢11,651.00
and so what he owed was GH¢
7,879. Defendant went on to
allege that the GH¢11,651.00 is
the value of only the 12 items
set out in paragraph 5 of his
statement of defence and this is
what he received from plaintiff.
He also alleged that there were
a number of items including
those listed in paragraph 6 of
his statement of defence that
the plaintiff supplied to him
which he refused to receive but
which were left in his house by
plaintiff in an effort to compel
him to buy them. He then went on
to tender exhibits 3a to 3g to
prove the supplies his business
Wood House Ltd received from
plaintiff. He denied being the
author of the signatures on the
delivery notes, said his
signatures were photocopy
scanned on to the delivery
notes, and went on to allege
that there was a time that
through the efforts of
plaintiff, the person in charge
of information technology in his
business was discharged from his
duties and plaintiff virtually
ran that department. Without
making any positive assertion
that it was the plaintiff who
scanned his signature on the
delivery notes, he made the
point that by reason of managing
his information technology
department plaintiff could have
obtained his signature on the
delivery note without his
consent. The issues to be
settled by this court are
whether plaintiff has proved the
supplies alleged and ought to
recover the sums he claims for
supplying them or the defendant
has proved that the signatures
on the delivery notes were not
his act, that he did not receive
the items claimed by plaintiff
and ought therefore not to be
compelled to pay for them.
Because the dispute centers on
positive allegations and denials
of the allegations, the duty of
the court is to evaluate the
proof of the different positions
tendered and determine whose
position must be accepted in the
light of the law of evidence.
Sections 10 to 15 of the
Evidence Act 1975 NRCD 373
outline the law that must be
applied in the submission and
evaluation of evidence. It
begins by placing a burden of
persuasion on a person who
alleges any position. Section 10
of NRCD 323 directs For the
purposes of this Act, the burden
of persuasion means the
obligation of a party to
establish a requisite degree of
belief concerning a fact in the
mind of the tribunal of fact or
the Court Thus the law makes it
obligatory for anyone who makes
an allegation of fact to
establish a requisite degree of
belief concerning that fact in
the mind of the adjudicator.
This belief must be established
by the tendering of 'sufficient
evidence'. The sufficiency of
evidence is guided by the
standard of proof that attaches
to the case and standards of
proof are determined by the
nature of the case - whether
civil or criminal. In civil
actions, the duty of a plaintiff
is to present evidence that will
persuade the court or tribunal
of fact that what they assert is
true on the preponderance of
probabilities and in allegations
of a criminal nature, the
standard of proof that will pass
the test of sufficient evidence
is proof that establishes the
fact averred beyond reasonable
doubt. 'Preponderance of
probability' is defined by
Section 12 (2) of NRCD 323 as
the 'degree of certainty of
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
As stated in the majority
decision read by Osei Hwere JA
An Bisi v. Tabiri alias Asare
1987-88 360 at 371, 'the
standard of proof required of a
plaintiff in a civil action is
to lead such evidence as will
tilt in his favor the balance of
probabilities of the particular
Issue. The rampant encounter
with the pleaders demand for
strict proof has never been
taken to call for an inflexible
proof either beyond reasonable
doubt or with mathematical
exactitude or such precision as
would fit a jig saw puzzle. With
the definition supplied,
preponderance of evidence, in
short, becomes the trier’s
belief in the preponderance of
probability’. Quoting an
explanation of 'probability'
from the American decision of
Norton v. Futrell, 149 Cal App
2d 586 (1957), his Lordship said
'the term ‘probability' denotes
an element of doubt or
uncertainty and recognizes that
where there are two choices, it
is not necessary that the jury
be absolutely certain or
doubtless, but that it is
sufficient if the choice
selected is more probable than
the choice rejected'. The
plaintiff in a civil action thus
carries a legal burden to
persuade the court of the truth
of his allegations by producing
sufficient evidence so that on
all the evidence a reasonable
mind could conclude that the
existence of the facts alleged
by him was more probable than
their non-existence. In order to
do this, to borrow from the
dictum of 011ennu J as he then
was in Khoury v Richter 8th
December 1958 (unreported) and
Majolagbe v. Larbi 1959 GLR 190,
the plaintiff had to go beyond
merely repeating the averments
in his pleadings on oath but
produce evidence of other facts
and circumstances from which the
court can be satisfied that what
he avers is true. Such evidence
must be .positive evidence such
as description of things,
reference to other facts,
incidents or circumstance even
if he cannot produce documentary
record of the transaction. And
what the plaintiff in this
action did was to tender
evidence of the case he alleged.
First, he presented delivery
notes signed by the defendant to
prove that not only were the
items alleged to have been
supplied actually supplied on
specific dates, they were also
received and signed for as
received by the defendant. This
was corroboration of his
averment and evidence of written
agreement on the transaction of
sale in the clearest and most
affirmative possible way.
Indeed, Section 25 of NRCD 323
goes on to direct that a
conclusive presumption exists
where any fact of agreement
reached is put in writing. It
reads Except as otherwise
provided by law, including a
rule of equity, the facts
recited in a written document
are conclusively presumed to be
true as between the parties to
the document, or their
successors in interest. Thus in
order to dislodge proof of the
establishment of the contract of
sale through those delivery
notes, the defendant had to
present evidence which would
lead to a finding in law or
equity that the delivery notes
must not be admitted as valid
evidence in court. The defendant
offered a defence in law without
defining the legal nature of the
defence in any clear manner. The
defendant alleged that his
signatures were placed on the
delivery notes by someone other
than himself. As stated, the
defendant failed to present this
defence in any clear manner. He
presented arguments from which
it would seem he expected the
court to make the inference of
some fraudulent act in the
manner in which his signature
came to be on the delivery
notes. He claimed that the
plaintiff literally had a field
day on his computers at some
point in time but stopped short
of telling the court positively
that it was the plaintiff who
scanned his signatures on the
delivery notes. He also
postulated that the signatures
had been photo scanned but
failed to support that
allegation with any modicum of
general evidence on
photo-scanning, or specific
evidence on how and where the
plaintiff would have done the
photo scanning should he have
been the one who caused it to be
done, This court cannot presume
that his office 'IT department'
had the necessary equiprnert and
that if plaintiff had the
opportunity, then he necessarily
did so, especially since the act
complained of would be criminal
in nature. To allege that your
signature has been photo scanned
on a document is to allege that
a criminal act has taken place.
It would be an act of forgery
and fraudulent in nature. It may
seem acceptable in conversations
to insinuate or speculate
dishonest photo scanning as the
reason for the occurrence of a
situation that one claim they
cannot explain. However, in
presenting a case in accordance
with the law of evidence, our
law does not allow speculation
when it comes to allegations of
criminal acts. To prove that
those signatures were
dishonestly photo scanned on the
delivery notes by plaintiff or
whoever the defendant imagined
did that photo scanning, the
defendant had to present proof
beyond reasonable doubt for this
court to accept that explanation
of how his signature got on the
delivery notes. This is the
import of sections 10 (2) (b)
and 13 of NRCD 323 which read
10(2) The burden of persuasion
may require a party to establish
the existence or non-existence
of a fact by a preponderance of
the probabilities or by proof
beyond a reasonable doubt. 13.
(1) In a civil or criminal
action, the burden of persuasion
as to the commission by a party
of a crime which is directly in
issue requires proof beyond a
reasonable doubt. The two
parties were making different
assertions. The plaintiff was
asserting a contract which is a
civil cause, and therefore he
carried a burden to prove the
contract by a preponderance of
probabilities. The defendant on
the other hand was inviting the
court to arrive at a finding
that the signatures on the
delivery notes were fraudulent
and not his act. This allegation
invited proof beyond reasonable
doubt since the act described by
the inference to be drawn was
criminal in nature. But
defendant made no effort to
prove, even on the preponderance
of probability that the
signatures were photo scanned on
the delivery notes, much more
prove beyond reasonable doubt
that such photo scanning was
done without his consent and
dishonestly. It seemed to me
from the manner of presentation
of defendant's case that
defendant counsel imagined that
the defendant could discharge
his burden of proof of the
allegation of photo-scanning by
raising a reasonable doubt
concerning the authenticity of
his signature, in the manner
anticipated under Section 10 (2)
(a) which reads 10(2) The burden
of persuasion may require a
party to raise a reasonable
doubt concerning the existence
or non-existence of a fact This
would be a serious
misapprehension of the law of
evidence and the circumstances
under which Section 10 (2) (a)
is operable when it comes to the
discharge of the burden of proof
as provided for by the statute.
At all material times, in
criminal or civil actions, it is
the person who is defending an
allegation of criminality (in
this case, it is the plaintiff
who would be defending the
allegation of photo scanning and
not the defendant making the
averment); who may raise a
reasonable doubt as to the truth
of the alleged fact. This is
further clarified in Sections
11(3) and 13 (2) of NRCD 373.
Thus since the defendant was the
one who introduced the
allegation of dishonest photo
scanning without his consent, he
carried a positive duty of proof
of that photo scanning, not a
negative duty of raising
reasonable doubt as to how his
signature got on to the delivery
notes by suggesting that it had
been done through photo
scanning. Section 15 of NRCD 373
puts it this way Unless it is
shifted, the party claiming that
a person has committed a crime
or wrongdoing has the burden of
persuasion on that issue' Thus
by alleging that the signatures
were photo scanned, the burden
of persuasion lay squarely on
defendant to prove that a
particular person placed his
signatures on the delivery notes
and he could only discharge the
burden by presenting proof
beyond reasonable doubt. As the
Supreme Court said in FENEKU V.
JOHN TEYE 2001-2002 SCGLR 985 In
any allegation of a criminal act
in a civil trial, the standard
of proof is governed by section
13 (1) of Evidence Decree
requires proof 'beyond
reasonable doubt'… Generally, in
a civil trial, the burden of
persuasion is on the
preponderance of probabilities.
Where, however a criminal act is
the issue in a civil trial, the
burden of persuasion requires
proof beyond reasonable doubt,
though the sufficiency of the
evidence required to attain that
standard, would depend to a
large extent, on the gravity of
that particular offence'.. By
focusing on merely insinuating
that his signature could have
been put on the delivery notes
by photo scanning, the defendant
failed to properly address the
legal exercise required for
proving the defence he raised
that the signatures were not his
- that is, rebutting a
conclusive presumption through a
defence in law or equity. I
dismiss the defence of the
defendant regarding his
signature on the delivery notes
as unsustainable in law and find
the delivery notes as raising a
conclusive evidence of the
supplies alleged by plaintiff.
It is also my evaluation that
the testimony of the defendant
and the evidence the defendant
tendered actually helped to
establish on the preponderance
of probabilities that the
plaintiff's testimony was true.
First, it was the plaintiff's
case that the original of the
delivery notes were retained by
defendant and that is why he has
photocopies. Although defendant
denied this position, he
tendered the rejected series
which went precisely to prove
that for those goods he
acknowledged that his business
received from defendant, all the
originals of the delivery notes
were retained by his business,
just as plaintiff said was their
custom in the transactions.
Secondly, every item he admitted
receiving in paragraph 5 of his
statement of defence was on one
of the different delivery notes
tendered by plaintiff. The HP
printer and desktop Dell
computer are on exhibit A4, The
UPS and Optical Mini mouse are
on exhibit A5, The Dell Flat
screen Monitor is on exhibit A6,
The sound system with speakers,
and 2 halogen bulbs are on
exhibit A, the lawnmower and
bulb socket are on exhibit Al,
the Halogen bulbs and economy
bulbs are on exhibit A2, and the
color Tv is on exhibit A3. They
all carry the same prices as set
out on the delivery notes. The
only understanding one obtains
from this evidence is that if
the defendants received those
items on each of the delivery
notes, then, on the balance of
probabilities, the remaining
items on them were also
delivered as alleged by
plaintiff. What I find even more
striking is the fact that though
the defendant alleged that his
wife asked him not to receive
most of the items delivered, he
failed to call his wife to
corroborate his evidence on what
was delivered to him and where
the rest of the items are.
Thirdly, exhibit 3 series showed
that the plaintiff was in the
habit of delivering numbers of
items at a time. Thus the
plaintiff's evidence that he
delivered various items which
were grouped on the delivery
notes is more likely to be true
than defendant's position that
the plaintiff brought only the
items singled out from the
various delivery notes but
failed to bring the rest listed
thereon. Fourthly, the defendant
cagily failed to deny receiving
the remaining items in any
assertive manner. In paragraph 6
of his last amended statement of
defence, he alleged that
plaintiff tried to force certain
items on him which he refused to
accept. In the very first
statement of defence filed on
27th February 2009, he averred
that he had not requisitioned
any items from plaintiff and
that 'he is surprised that the
plaintiff continued sending him
items for two years without
payment'. In his evidence, he
stated that plaintiff had the
habit of coming to leave items
in his house and refusing to
take them away if he said he did
not want them and his wife told
him to send the items back but
he did not know the plaintiff's
house. He said in evidence in
chief ...... I do not remember
signing any delivery notes.
...These are not my signatures,
they are photocopy scanned, I
don't remember. I deny signing
any delivery notes..'. What is
the court to make of this
testimony? Was it that he signed
the delivery notes but did not
remember signing them, or that
he definitely did not sign them
but they were photocopy scanned?
It would seem that defendant
imagined that it was a legally
sustainable position to say (and
this is how I can paraphrase the
evidence given); 'yes, certain
items were brought to me, yes,
they were left in my house, I
did not want them, but no, I did
not give them back to plaintiff
because I did not know where to
find him. Yes, I recognize my
signature, but I don't remember
signing delivery notes. Well, I
deny signing them and believe
that my signature was photocopy
scanned and the plaintiff had an
opportunity to do that
photo-scan. Yes, I invited the
plaintiff to pick the items
supplied up and since he did
not, they have remained in my
house. But I am not clear about
what all these items are - even
though I have notice of the
items the plaintiff alleges were
brought to me, nor where they
are at the moment. I believe it
is enough if I tell of some of
those I received even though
there are more than those. But
whatever their number, they
remain in my house but I should
not be deemed to have agreed to
buy them.’ His evidence was
simply contradictory,
incoherent, not credible, and
not supported by any law as a
valid defence to the case before
the court. The position of the
law is that if the defendant did
not accept to buy the items, he
should not have intimated
acceptance of them in any way.
Secondly, if he rejected the
items, he should have done it
within a reasonable time after
receiving them. Rejection of
goods in a sale transaction
after receiving them into one's
custody, as well as acceptance
of an offer to buy goods in the
law of contract, are both legal
concepts regulated by legal
principles. Once acceptance is
communicated, such as the
signatures on the delivery
notes, a binding contract is
created. If there is rejection
thereafter, it must also be for
proper reasons and communicated.
Section 51(1) of The Sale of
Goods Act, 1961 Act 137 is clear
that a buyer of goods cannot
reject goods which he has
accepted. The acts of acceptance
are set out in section 52 and
include a. Intimating to the
seller that the buyer accepts
the goods. B. when the buyer
does not, within a reasonable
time after delivery of the
goods, inform the seller that he
rejects them. Although the
defendant claims that he
informed the plaintiff that he
rejected the goods in issue, he
did not prove such rejection to
this court through any
corroborating testimony; neither
did the acts of retaining the
goods support this claim of
rejecting them. Indeed, the
defendant rather proved by his
own testimony that the parties
had always appreciated that the
goods supplied to him were for
the value claimed by plaintiff.
He tendered exhibit 4 as a
proposal that plaintiff sent to
him on 29th December 2008
requesting that defendant give
him 3 acres of his land at
Peduase in payment for the items
supplied. Once again, he was
unclear as to what he wanted the
court to make of that testimony
- whether to arrive at a finding
that the claims of plaintiff
were made up as an act of
extortion or that the claim for
the money should not be
entertained because plaintiff
actually wanted land from
defendant. And especially so
because whether or not the
plaintiff wanted to be paid with
land from Peduase, such a
situation is irrelevant to his
right of recovery of debts owed
for goods sold. It is important
that when a party makes a case
in court, he is clear as to the
legal nature of the case he
alleges arises out of the acts
he describes to the court
otherwise the evidence has no
function in the proceedings. Be
that as it may, although
defendant failed to support his
own defence in any clear manner
by tendering exhibit 4, exhibit
4 establishes that before the
parties came to court, the
plaintiff was claiming a total
debt of GH¢27,716 (please see
6th paragraph Of exhibit 4) and
this was known to defendant.
This only goes to support the
plaintiff's case that the items
supplied is in a region in
excess of GH¢20,000 and not the
defendant's defence that it was
in the region of GH¢11,000. From
the evidence before me,
established from the evidence of
both plaintiff and defendant, I
find that the plaintiff has
established by conclusive
evidence through the delivery
notes, by corroboration from
defendant's exhibits, and on a
preponderance of probabilities
from all the evidence before the
court that he supplied the items
listed in the delivery notes to
defendant between 2006 and 2008
and defendant has only paid the
sum of GH¢3,772 for the items he
received. With the proof
tendered, I order the defendant
to pay the plaintiff as claimed
by the plaintiff in his
statement of claim the sum of GH¢20,773
with prevailing interest from
December 2006 by which date
defendant's debt had reached the
GH¢20,773 claimed. The
defendant's defence is dismissed
as being totally unsupported by
the evidence before the court.
Costs of GH¢2,000.00 COUNSEL:
MR.ROBERT ALLOH FOR PLAINTIFF –
PRESENT MR.YAW BUABEN ASAMOA FOR
DEFENDANT - ABSENT
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