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JUDGMENT:
Plaintiff’s claim is for the
following:
a.
Recovery of the sum of
GH¢27,825 from the Defendant.
b.
Interest at the prevailing
commercial bank rate from
September 2006 to the date of
payment.
c.
General Damages.
By its pleadings, Plaintiff
claims that it supplied the
Defendant with iron and metal
products. Defendant paid its
debts to Plaintiff leaving an
outstanding balance of GH¢27,825
as at 28th August
2006, which debt Defendant has
refused to pay despite repeated
warnings and demands by
Plaintiff.
Defendant has denied Plaintiff’s
claim and contends that on 27th
December 2004, 30th
December 2004, 5th
January 2005 and 31st
January 2005, Clay
Products(Ghana) Limited, a
subsidiary of the Plaintiff
Company supplied three (3)
different sizes of equal angles
steel products to the Defendant
Company totalling
¢3,292,280,000.00
(GH¢329,228.00).
Defendant contends further that
upon physical checking of the
steel products which were
supplied to the Defendant by
Clay Products on 27th
December 2004 it was discovered
that 14,574 pieces of equal
angles were supplied to the
Defendant instead of 17,800 as
stated in the waybills.
Defendant states that it
received 52 bundles of various
sizes of the steel products. It
is Defendant’s contention that
upon the discovery of the
discrepancies, it duly informed
the Plaintiff and the subsidiary
company and they promised to
rectify the anomaly. The
Defendant has so far paid to the
Plaintiff an amount of
GH¢319,228.00 leaving an
outstanding balance of
GH¢10,000.00.
At the Pre-trial Settlement
Conference, Defendant admitted
liability to the tune of
GH¢10,000.00. Judgment was
therefore entered in favour of
the Plaintiff in the sum of
GH¢10,000.00. This leaves
Plaintiff with the sum of
GH¢17,825 on its claim. This
judgment is thus in respect of
the amount of GH¢17,825.00.
Yaw Frimpong Amoabeng (a former
employee of Plaintiff company),
and Francis Hammond (an
Accountant of Plaintiff Company)
adduced evidence on behalf of
Plaintiff. Yaw Frimpong Amoabeng
(P.W.1) used to be a Dispatch
Officer at Plaintiff Company and
his evidence was that he
delivered the goods in question
to the Defendant. According to
him whenever goods were sent
out, they were physically
counted with the agent of
Defendant, the security man and
himself. After that they did
reconciliation before invoices
were issued out. In his opinion,
there was no way any discrepancy
would occur because they all
counted separately, they
reconciled the figures to the
satisfaction of all, the
invoices were issued and the
goods dispatched.
It was P.W.1’s evidence that on
the day in question he
remembered counting the goods
with one Nicholas, who testified
as D.W.2. P.W.1 also testified
that there were a series of
meetings subsequently, and at
one such meeting it was
discovered that the required
quantity was supplied and the
Defendant promised to pay the
difference; D.W.1 denied this,
and also testified that the
Defendant had an account with
the Plaintiff into which monies
were paid in instalments. P.W.1
identified his signature on
Exhibits 1, 1A and 1B, and also
identified the signatures of the
Factory Manager Mr. Bediako,
Nicholas (D.W.2), and a driver
who came with Nicholas, amongst
others. P.W.1 also identified
the way bill of 30th
December 2004 as coming from
Clay Products. Such was
received and marked as Exhibit
2, 2A and 2B. The way bills of
31st December 2004
were admitted in evidence as
Exhibits 3, 3A and 3B, and those
of 5th June 2005
marked as Exhibit 4, 4A and 4B.
The evidence of P.W.2, Francis
Hammond was that he kept the
Defendant’s account and tendered
in evidence the account as at 28th
August 2008 which had a debit
balance of GH¢27,825.00 as
Exhibit A. He stated that
Defendant was not paying for
goods supplied as expected and
when they were confronted said
that the quantity supplied was
different from that stated on
the invoice. He also stated that
when Defendant was made aware of
its outstanding balance, it
disputed the balance less
GH¢10,000.
The Defendant on the other hand
adduced evidence through Paul
Amenku (Director of Defendant
Company) and Nicholas Yaw Amedzo
( a former Employee of Defendant
Company). Paul Amenku (D.W.1)
denied not paying for metal
products received from
Plaintiff. His evidence was
that on the day in question he
directed his workers to go to
Tema and being trailers to go to
Clay Products to carry the
goods, which they did.
According to D.W.1, he met the
Chief Executive Officer (CEO) of
Plaintiff Company who conducted
him round the whole yard, showed
him the materials and took him
to the warehouse where the
materials were being re-bundled.
He said he saw a lot of damaged
products and workers rebundling
them. D.W.1 stated further that
when the CEO authorised his
workers to go in and collect the
goods, he left and he (D.W.1) in
turn gave instructions to his
workers to go in and load the
trucks, and then he also left.
He said he was in his office
when the goods arrived. He said
he asked that the goods to be
packed in sizes and they were
re-checked. The salesman
informed him immediately that
what was on the waybill was
different from the number
physically counted.
According to D.W.1, when he was
notified of the shortage he
called the CEO of Plaintiff
Company and informed him. He
(D.W.1) was invited to a meeting
the following day; he attended
this meeting with his workers.
The CEO of Plaintiff Company
asked them to talk to his
workers and so they went to the
office of Mr. Bediako who has
been identified by P.W.2 as the
Factory Manager. D.W.1’s further
evidence was that his workers
informed the meeting that they
were prevented from following
the trailers (trucks) into the
yard to load the goods, with the
exception of the driver.
D.W.1 stated further that even
though he could not say how many
workers he sent to Clay Products
on 27th December 2004
they were more than four. The
names he mentioned included
Nicholas (D.W.2). He disputed,
under cross-examination, that
the drivers were his agents.
His contention was that he did
not send the trailer drivers to
supervise the loading; they were
sent to load the goods.
D.W.2, Yaw Amedzo also testified
that on the day in question, the
security men at Defendant
Company allowed only the driver
to go into the yard. He said
that this was the first time
they were collecting the goods
from the Clay Product premises.
He admitted signing Exhibit “1”,
“1A” and “2B” but stated that he
only signed as receiving the
goods. D.W.2 testified further
that the following day he went
to Clay Products to discuss the
issue of the shortage and met
one Mr. Goltz who works with
Plaintiff Company told him not
to worry and that he would talk
to Plaintiff.
In my opinion, the main issues
to be determined are firstly,
whether or not the Defendant’s
agents or representatives were
involved in the counting of the
goods before the waybills were
issued. And, whether or not the
Defendant indeed received the
quantity of goods stated on the
waybills of the 27th
of December, 2004, tendered in
evidence as Exhibit 1, 1A, 1B.
If the answers to both questions
are no, then the Defendant is
not liable.
It is the case of the Plaintiff
that the figures reflected on
the waybills were accurate and
that indeed representatives of
the Defendant, particularly
D.W.2, were present and took
part in the physical counting of
the goods piece by piece, before
the waybills were issued and
signed by those present and
authorised so to do. Plaintiff’s
case is that all those who were
at Clay Products on the day in
question were either workers or
representatives/agents of the
Defendant and therefore any
action they took was for and on
behalf of the Defendant, which
binds the Defendant.
It is trite learning that 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 only to lead
sufficient evidence to tip the
scale in his favour when on a
particular issue the Plaintiff
leads some evidence to prove his
case. If the defendant succeeds
in doing this, he wins, if not
he loses on that particular
issue (per Aikins JSC in
Ababio v. Akwasi III [1994-95]
Ghana Bar Report Part 2, 77).
In the instant case Plaintiff is
alleging that, Defendant owes an
outstanding balance on goods
supplied to it. P.W.2 tendered
in evidence as Exhibit “A”, a
Statement of the Defendant
Company’s account with Plaintiff
Company. It indicated that as at
08/28/2006 Defendant owed
Plaintiff an amount of
¢278,250,000.00 (GH¢27,825.00).
Defendant is however contending
that it does not owe Plaintiff
the amount it is claiming
because goods supplied to it on
27th December, 2004
fell short of the quantity
stated on the waybills. The onus
was therefore on Defendant to
prove this assertion.
Exhibit “1”, “1A” and “1B” are
all waybills issued in the name
of Defendant on the day in
question; i.e. 27th
December 2004. All three (3)
were indeed signed by D.W.2, as
were all of the other waybills
tendered in evidence and marked
Exhibits “2”, “2A”, “2B”, “3”,
“3A”, “3B”, “4” and “4A”,.
Exhibit “2” series is dated 30th
December 2004; Exhibit 3 series,
31st January, 2005;
and Exhibit “4” series, 5th
January 2005.
What I find interesting is that
it is only on the waybills dated
27th December 2004
that bore two signatures under
the portion “Checked and
Received”; that of Nicholas
(D.W.2) and another. On all the
other waybills tendered in
evidence they bore only the
signature of Nicholas. And,
Nicholas’ evidence was that he
only signed under the “Received”
portion of exhibit “A” series;
because on that particular day
the security man at Clay
Products would not allow him
into the yard and so he was not
present when the actual counting
and loading was done; he only
received the goods at the gate
and signed for them as received.
So Nicholas, D.W.2, and Yaw
Frimpong Amoabeng (P.W.1) were
the only persons who were at the
scene i.e. where the goods were
loaded, who were brought to
court to testify. For whatever
reason, the security man who was
at the gate of Clay Products and
who is reported to have stated
at a subsequent meeting held
after the report made by
Defendant about the shortfall,
that Nicholas was present when
the goods were being counted,
did not come to Court to
testify. In my opinion
therefore, what the said
security man was said to have
stated is hearsay.
I shall proceed to examine the
evidence of D.W.2 and P.W.1. As
I have already stated, Nicholas’
evidence was that he was not
allowed into the yard of Clay
Products where the goods were to
be loaded. He said that was the
first time they were collecting
the goods, from Clay Products.
He stated further that when they
got there the security man told
them that Mr. Dankwah had
instructed him to allow only the
driver and the vehicle into the
yard. Nicholas also testified
that he was not in the yard so
he did not know who signed under
the portion captioned
“checked”.
In my opinion, the drivers of
the trailers who collected the
goods from Clay Products cannot
be said to be authorised agents
of the Defendant because there
is no evidence that they were
required to sign the waybill as
having checked and/or received
the goods. D.W.1’s evidence I
also do not think that any
evidence was led that would make
me conclude that they tampered
with the goods between Clay
Products and Defendant’s office.
Nicholas’ further evidence was
that when he subsequently went
to Clay Products to complain,
one Mr. Goltz assured them that
he would sort it out with
Plaintiff. Mr. Bediako who was
identified as the Factory
Manager at Plaintiff Company by
P.W.1 also signed Exhibit “1”
series. In my opinion, both
Messers Bediako and Gotz were
material witnesses in this
matter particularly for
Plaintiff, but neither was
called by either Plaintiff or
Defendant to come to testify,
and no evidence was adduced
which would enable me to even
infer the reason why they were
not called.
In my view, the fact that the
Nicholas could not recollect
Plaintiff’s assertion that the
security man in question
confronted him at the meeting
held to resolve the issue is not
enough to conclude that Nicholas
was not a truthful witness.
All these incidents occurred in
2004/2005, about six (6) years
ago; that is quite a while. I
also do not accept counsel for
Plaintiff’s submission that
Nicholas had the power to take
decisions affecting the goods
being carried from Clay
Products. I do not know if
Counsel meant that Nicholas
could have rejected the goods.
There is no evidence to suggest
that he had that kind of
authority. The evidence placed
before the Court was that both
D.W.1 reported the alleged
shortfall to Plaintiff Company
almost immediately and Defendant
did not sell the goods till
about a month later. They also
invited Plaintiff to come and
confirm the shortfall so that
they could discuss settlement
but to no avail.
P.W.1’s evidence was that
Nicholas was in the yard of Clay
Product on the day in question
and participated in the physical
counting of the goods. Even
though at a point in time, P.W.1
categorically stated that
Nicholas was present on the day
in question, generally I find
his evidence not precise; he
described the usual procedure
adopted in counting,
reconciling, loading and issuing
of waybills for the supply of
goods. But Defendant’s case was
that what happened on the day in
question was unusual. The usual
thing is for the customer’s
authorised representative to be
present during the loading of
the goods. An example of what
P.W.1 said in evidence is as
follows:
Q: Before these goods were
loaded unto the truck they were
tied
in bundles?
A: Yes
Q: And put on the truck?
A: Yes. So it was on the
truck that the physical counting
was done
of the pieces, making up the
bundles were counted on the
truck, after the forklift had
lifted the bundles onto the
truck; myself the security and
the agent of the customer, we
count it one by one with chalk
and after that, the three of us
reconcile getting one figure
before the next bundle is
brought onto the truck.
Q: Those who were present
on the 27th were just
the drivers of
Defendant, there were no workers
of Defendant at your premises or
your yard, they were only
drivers who came to convey the
goods?
A: My Lord you are saying
they are drivers, I don’t know
their
description.
Q: I am putting it to you
that?
A: I don’t know. I know
they were agents from Defendant
company. I didn’t know whether
they were drivers or workers
This is the same witness, who
testified that Nicholas, D.W.2
was present to count and load
the goods that were supplied on
the 27th of December,
2004. In my opinion, Plaintiff
has failed to establish that the
drivers of the vehicles used in
loading/carting the goods were
agents of the Defendant.
It appears that it is the word
of P.W.1 against that of D.W.2.
In my opinion the evidence of
D.W.2 is to be preferred against
that of P.W.1. This is because
D.W.2’s evidence is consistent
with the contents in the letter
written to Plaintiff by
Defendant as far back as 15th
October 2005 (Exhibit 9).
Exhibit 9 is a copy of a letter
that D.W.1 stated was sent to
Plaintiff. The copy tendered in
evidence was the one that D.W.1
said he took with him to a
meeting with P.W.2, Mr Hammond.
The pen marks were the result of
the cross-checking he did with
P.W.2. I accept D.W.1’s
evidence.
I do not think that D.W.2
fabricated the story purposely
for the instant case; it has
been their position all along,
as stated in Exhibit 9. I
believe and accept D.W.2’s
evidence that he was not allowed
to go into the yard of Clay
Products on the 27th
of December, 2004, and therefore
was not present when the goods
were counted and loaded, and
will so find. I will also find
that Defendant has on the
totality of the evidence adduced
and on the balance of
probabilities that the Defendant
did not receive all the goods as
stated on the waybills marked as
Exhibit 1, 1A and 1B.
The position of the law is that
there are circumstances where
the Court could without
corroborative evidence accept
the evidence of a single witness
even though his testimony had
been contradicted by the
evidence of another witness;
See Diab v. Quansah
[1974] 1 GLR 101.
Counsel for Plaintiff suggested
in his written address that
D.W.2 had the authority to take
decisions and could therefore
probably have complained
immediately to Plaintiff or even
rejected the goods. The Sales of
Goods Act, 1962(Act 137) Section
14 (1) provides as follows:
“where the seller delivers to
the buyer a quantity of goods
less than what the seller had
contracted to sell, the buyer
may reject them but if the buyer
accepts the goods so delivered,
the buyer shall pay for them at
the contract rate.”
As I have already stated, no
evidence has been placed before
the Court to imply that D.W.2
had any such authority. The
evidence adduced was that D.W.2
was informed by phone that there
was a shortfall after the goods
had been delivered to Defendant.
The evidence of D.W.1, who is
the Director for Defendant
Company was that he decided not
to take any drastic actions, but
instead complain to Plaintiff
because of the long standing
business relationship between
the parties. So, who was D.W.2
to reject the goods? D.W.1’s
evidence under cross examination
was that he was sent by his
Director so he reported the
matter to him as soon as he got
the information about the
shortage. In my opinion, that
was as much as she could do in
the circumstances.
D.W.1’s further evidence was
that he was informed soon after
the delivery of the goods about
the alleged short fall. Both
D.W.1 and D.W.2 testified that
the report was made immediately
upon delivery at Defendant’s
when upon checking the goods
they found that there was a
shortfall. P.W.1 conceded that
a report was made albeit not
immediately but not too long
after. It is apparent that the
matter was not resolved at the
subsequent meetings that were
held.
When D.W.1 was asked by Counsel
for Plaintiff why Defendant did
not return the goods to the
Plaintiff when they noticed the
shortfall, D.W.1’s response was
that after reporting the
shortfall to Plaintiff, they
were expecting that Plaintiff
would come to verify things for
themselves but they never did.
D.W.1’s evidence was that they
wanted for about a month before
they started selling the goods.
D.W.1’s further evidence was
that Plaintiff asked Defendant
to wait for the return of
Plaintiffs manager to resolve
the matter. They were asked to
continue with the supply of
goods by Clay Products; that was
when the Defendant’s workers
were allowed to enter the yard,
check and receive the goods.
Thus exhibits “2”, “3” & “4”
series, he signed as having
received the goods.
The Defendant’s position is that
it does not owe the Plaintiff
the amount it is claiming.
D.W.1’s evidence was that
Defendant could not pay for
goods it had not received. D.W.1
also testified that Plaintiff
had had occasion to review the
Defendant’s alleged total
outstanding balance because
Defendant had rejected the
amounts. D.W.1 tendered in
evidence Exhibits 7 and 8 to
support his claim that there
were many inconsistencies in
invoices raised by Plaintiff to
cover goods supplied to
Defendant.
In conclusion, I find that
Plaintiff has not proved it case
that Defendant owes it the
amount being claimed and will so
hold. I will therefore dismiss
Plaintiffs claim.
Costs assessed at GH¢2,500
against Plaintiff.
(SGD)
BARBARA
ACKAH-YENSU (J)
JUSTICE OF
THE HIGH COURT
COUNSEL
EDWARD DARLINGTON
- PLIANTIFF
NELSON KPOHAR
-
DEFENDANT
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