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Contract –
Capacity - Supply of comodities
– Refund of monies paid –
Intrest at prevailing bank rate
- Whether or not Defendant is
indebted to Plaintiff as claimed
- Whether or not Plaintiff has
been pre-financing supplies of
lead and battery dust from
Defendant - Whether or not
Defendant approached plaintiff
for time to settle his
indebtedness - Whether or not
Defendant voluntarily admitted
his indebtedness to the
Plaintiff at the police station-
Whether or not the Court
misdirected itself - sections
10, 11 and 14 of the Evidence
Decree NRCD 323.
HEADNOTES
The facts on
which this appeal is premised
are straightforward. As aptly
put by the court below, this is
a simple case of a creditor and
debtor. The Plaintiff/
Respondent/
Respondent(Respondent) sued the
Defendant/Appellant/Appellant
(Appellant) in the Commercial
Court, Accra, in his personal
capacity for the sum of
ข450,000,000 and interest on the
amount at the prevailing bank
rate till date of final payment.
The accompanying statement of
claim, which stated in crystal
clear terms that he was suing in
his personal capacity and
against the defendant
personally, disclosed that the
debt arose out of monies paid to
the Appellant for the supply of
scrap and lead ingots, but which
were never supplied, The
Defendants, contend that
sometimes they supply the
Plaintiff with lead and scrap
material before payment; other
times the Plaintiff will pay in
advance or up-front for the
material to be processed and
supplied to the Plaintiff.and
denied owing the said amount
.
HELD
(1)However,
on the facts, the argument that
the court had a duty to
determine the issue of capacity
is without merit. The issue was
not raised when the Respondent,
the initiator of the action was
cross-examined. Indeed, the
invoices and payments receipts
bearing the Koala Shopping
Centre logos which counsel
relies on to buttress the
argument in relation to capacity
were introduced at a rather late
stage of the proceedings- during
the Appellant’s testimony. They
were never introduced during the
cross examination of the
Respondent, which would then
have enabled the Respondent to
respond appropriately to the
challenge and offer
explanations, if any, as to why
the receipts bore those
logos.The case thus proceeded on
the basis that that the parties
were the proper persons to sue
and be sued respectively. Indeed
the following exchanges between
the judge and counsel confirms
this conclusion
(2) We found
that the other appeal grounds,
which were all argued together
under the omnibus ground of the
judgment being against the
weight of evidence, because they
are all inter related, cannot
succeed. In a judgment claim
such as the one before us,the
appellate court rightly
concluded that the legal
position is that the initial
burden of proof fell on the
Respondent to establish a prima
facie case, after which the
burden shifted on to the
Appellant to lead contrary
evidence
(3)The
Appellant failed to demonstrate
that his case fell within those
exceptions or instances where
the second appellate court may
interfere with the concurrent
factual findings of the courts
below. The findings and
conclusions thus stand and will
not be overturned
In respect of
impeaching the credibility of
the Appellant, the learned trial
judge in her judgment stated
that she was not placing any
reliance on the evidence of the
two policemen, so where did she
err by impeaching the
credibility of the Appellant?
She never considered the
evidence of PW2 and PW3 and
never placed any weight on them
to form her decision.” We found
no merit in any of the appeal
grounds and hence our decision
of 29th July, 2014 to
dismiss the appeal in its
entirety.
STATUTES
REFERRED TO IN JUDGMENT
Evidence
Decree NRCD 323.
CASES
REFERRED TO IN JUDGMENT
Achoro v
Akanfela [1996-97] SCGLR 209;
Koglex Ltd
(No. 2) v Field[2000]SCGLR 175
Ntiri v
Essien [2001-2002]SCGLR 459;
Sarkodie v F
K A Co Ltd [2009] SCGLR 79;
Jass Co Ltd v
Appau [20009] SCGLR 266
Awuku-Sao v
Ghana Supply Co Ltd [2009] SCGLR
713.
Thakur
HariharBuksh v Thakur
UmonParshad(1886)LR 141A7;
Allen v
Quebec Warehouse Co (1886)12 App
Cas 101
Robins
vNational Trust Co [1927] AC 515
Moro V
Huseine (2013) 59 GMJ 1
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
WOOD (MRS.)
CJ:-
COUNSEL
THOMAS
HUGHES ESQ. FOR THE
DEFENDANT/APPELLANT/APPELLANT.
OSUMAN
MOHADEEN ESQ. FOR THE
PLAINTIFF/RESPONDENT
/RESPONDENT.
__________________________________________________________________
REASONS FOR
JUDGMENT
ญญญญญญญญญญญญญญญญญญญญญญญญญ_________________________________________________________________
WOOD (MRS.)
CJ:-
On the 29th
July, 2014, we decided this
appeal in favour of the
Respondent. These are the
reasons for our decision in
respect of the appeal against
the judgment of the Court of
Appeal dated 22nd
May, 2008. By it, the lower
appellate court affirmed in
every material particular, the
detailed and well-reasoned
decision of the trial court. A
careful reading of the judgment
reveals that all the findings of
fact received the appellate
court’s full endorsement.
The legal
position on the circumstances
under which a second appellate
court may interfere with the
concurrent findings of fact of
two lower courts, places a
herculean task on the appellant,
as the grounds which may justify
an interference with such
findings are rather limited. The
following cases represent only a
few of the long line of cases on
this well-established legal
principle which admits of no
controversy. These are Achoro v
Akanfela [1996-97] SCGLR 209;
Koglex Ltd (No. 2) v
Field[2000]SCGLR 175; Ntiri v
Essien [2001-2002]SCGLR 459;
Sarkodie v F K A Co Ltd [2009]
SCGLR 79; Jass Co Ltd v Appau
[20009] SCGLR 266 and Awuku-Sao
v Ghana Supply Co Ltd [2009]
SCGLR 713.
That legal
proposition is expressed thus:
“(2) [I] In
an appeal against findings of
facts to a second appellate
court like… [the Supreme Court],
where the lower appellate court
had concurred in the findings of
the trial court, especially in a
dispute, the subject-matter of
which was peculiarly within the
bosom of the two lower courts or
tribunals, this court would not
interfere with the concurrent
findings of the two lower courts
unless it was established with
absolute clearness that some
blunder or error resulting in a
miscarriage of justice, was
apparent in the way in which the
lower tribunals had dealt with
the facts. It must be
established, e.g. that the lower
courts had clearly erred in the
face of a crucial documentary
evidence, or that a principle of
evidence had not been properly
applied; or, that the finding
was so based on erroneous
proposition of the law that if
that proposition be corrected,
the finding would disappear… It
must be demonstrated that the
judgments of the courts below
were clearly wrong. Thakur
HariharBuksh v Thakur
UmonParshad(1886)LR 141A7; Allen
v Quebec Warehouse Co (1886)12
App Cas 101and Robins vNational
Trust Co [1927] AC 515 cited”.
This appeal
is based on as many as six
separate grounds. It includes
the oft used omnibus ground,
which though in broad and
general terms, is nevertheless
permitted under the Supreme
Court Rules C.I.16. The grounds
are that the:
“ORIGINAL
GROUNDS
1. Court
misdirected itself when it
agreed that the burden of proof
shifted unto the Appellant when
it was the Respondent who had to
prove that Defendant owed him
GHข45,000.00.
2. …judgment
is against the Weight of
Evidence.
3. …Court
erred or misdirected itself when
it in effect ruled that because
the Appellant did not object to
Exhibits A, B, C, D, E, F, G, H
at the trial court he was bound
by the contents of the
Exhibits.”
“ADDITIONAL
GROUNDS
a.
…Learned Judges failed to
address on the issue of capacity
and made no decision on that
ground.
b.
…Learned Judges failed to
address again on the Ground of
Appeal that the trial judge
erred when she distilled
Plaintiff’s case for him instead
of giving her judgment based on
the evidence.
c.
…Appellant was not the proper
person to be sued in this matter
hence there was no defendant in
the Suit.”
The facts on
which this appeal is premised
are straightforward. As aptly
put by the court below, this is
a simple case of a creditor and
debtor. The Plaintiff/
Respondent/
Respondent(Respondent) sued the
Defendant/Appellant/Appellant
(Appellant) in the Commercial
Court, Accra, in his personal
capacity for the sum of
ข450,000,000 and interest on the
amount at the prevailing bank
rate till date of final
payment.” The accompanying
statement of claim, which stated
in crystal clear terms that he
was suing in his personal
capacity and against the
defendant personally, disclosed
that the debt arose out of
monies paid to the Appellant for
the supply of scrap and lead
ingots, but which were never
supplied.
Appellant per
his statement of claim denied
owing the said amount. He
however admitted doing business
with the Respondent. His case,
as explained in the paragraph 5
of his statement of defence is
that:
“The
Defendants, in answer to
paragraph 7 of the statement of
claim will contend that
sometimes they supply the
Plaintiff with lead and scrap
material before payment; other
times the Plaintiff will pay in
advance or up-front for the
material to be processed and
supplied to the Plaintiff.”
The action
which was instituted on the 10th
of October 2006 was initially
against two Defendants, with the
claim against the 2nd
Defendant being subsequently
discontinued, leaving the
Appellant herein as Defendant.
Having regard to the state of
the pleadings, it is no surprise
that at the pretrial conference,
the following were the issues
which were set down for trial at
the pre-trial conference.
1.
“Whether or not Defendant is
indebted to Plaintiff in the sum
of ข450,000,000.00 as
claimed.
2.
If so,
when the said sum became due and
owing to Plaintiff
3.
Whether or not Plaintiff has
been pre-financing supplies of
lead and battery dust from
Defendant.
4.
Whether or not Exhibit “1”
attached to the Statement of
Claim was made by the Defendant
5.
Whether or not Defendant
approached plaintiff for time to
settle his indebtedness.
6.
Whether or not Defendant
voluntarily admitted his
indebtedness to the Plaintiff at
the police station.”
The appeal
grounds relating to capacity is
so fundamental that we proceed
to address that and the
additional ground (c) first. The
only argument upon which the
Appellant based the challenge to
capacity and consequently that
he was not the proper person to
be sued is that:
“All the
invoices, payment receipts (SEE
PAGES 196-248) bore the
Koala Shopping Centre logo or
stamp indicating that it was
Koala Shopping Centre that was
dealing with the Defendant.
Paragraph 1-4 of the Statement
of Claim leaves no doubt that
the business was between the two
companies and not the Managing
Directors of the respective
companies who in the
circumstances had no capacity to
sue as Plaintiff which the
Defendant was wrongly added to
the Suit. Since the Court of
Appeal did not pronounce of
(sic) this Ground or give any
reasons for not doing so, it is
our submission that this failure
may be due to inadvertence and
therefore calling on this Court
to pronounce on it.
Secondly, the
plaintiffs Manager at page 80 of
the record admitted that he
acted on behalf of the company.
Again, reference is made to the
cashier and managers of both
companies. The issue of capacity
can be raised as an issue of law
and it is no answer to say that
since it was not raised in the
Court below it was too late to
be raised. SEE MORO V HUSEINE
(2013) 59 GMJ 1 (SC).”
We concede
that the legal question of
capacity, like other legal
questions, such as jurisdiction,
may be raised even on appeal.
But it is trite learning that
the principle is clearly
circumscribed by law. The right
to raise legal issues even at
such a late stage is legally
permissible only if the facts,
if any, upon which the legal
question is premised, are either
undisputed, or if disputed, the
requisite evidence had been led
in proof or disproof of those
relevant facts, leading to their
resolution by the trier of
facts; failing which the facts
could, and based purely on the
evidence on the record and
without any further evidence,
decidedly be resolved by the
appellate court.
In this
instant case, we had little
difficulty in rejecting these
two grounds of appeal. The
charge that the court below
failed to address the issue of
capacity and made no decision on
it and further that he was
improperly sued and therefore
that “there was no defendant in
the suit”, is wholly untenable.
Contrary to these assertions,
the learned justices of appeal
unanimously ruled:
“With regard
to the issue of capacity, I
think this issue was settled
when the appellant admitted in
paragraph ‘3’ of his statement
of Defence that he dealt with
the respondent in the latter’s
personal capacity.
“paragraph
‘4’ of the statement of claim is
admitted.”
The paragraph
‘4’ of the statement of claim
stated as follows:
“4. The
plaintiff avers that the 1st
defendant is a business partner
who supplies him with scrap and
lead ingot products for his
business.”
From the
above, we are of the opinion
that whatever transaction took
place resulting in this
indebtedness was between two
individual persons –Wolley and
Fattal and not between Koala
Company and Fattal.”
These
findings and conclusions are so
clearly supported by the record
that we cannot by any stretch of
imagination justify their
reversal. As rightly found by
the court below, the Appellant
did not in his pleadings
challenge the capacity in which
the Respondent instituted the
action nor the capacity in which
he, the appellant was sued. This
accounts for the reason why
these two critical issues were
never included in the agreed
issues set down for resolution.
Admittedly,
it is indeed sound basic
learning that courts are not
tied down to only the issues
identified and agreed upon by
the parties at pre-trial. Thus,
if in the course of the hearing,
an agreed issue is clearly found
to be irrelevant, moot, or even
not germane to the action under
trial, there is no duty cast on
the court to receive evidence
and adjudicate on it. The
converse is equally true. If a
crucial issue is left out, but
emanates at trial from either
the pleadings or the evidence,
the court cannot refuse to
address it on the grounds that
it is not included in the agreed
issues.
However, on
the facts, the argument that the
court had a duty to determine
the issue of capacity is without
merit. The issue was not raised
when the Respondent, the
initiator of the action was
cross-examined. Indeed, the
invoices and payments receipts
bearing the Koala Shopping
Centre logos which counsel
relies on to buttress the
argument in relation to capacity
were introduced at a rather late
stage of the proceedings- during
the Appellant’s testimony. They
were never introduced during the
cross examination of the
Respondent, which would then
have enabled the Respondent to
respond appropriately to the
challenge and offer
explanations, if any, as to why
the receipts bore those
logos.The case thus proceeded on
the basis that that the parties
were the proper persons to sue
and be sued respectively. Indeed
the following exchanges between
the judge and counsel confirms
this conclusion.
“JUDGE: Mr
Turkson, is your client denying
that he took the money?
Counsel for
Defendant: My Lord we are
denying that we received
ข450,000,000. We admit that we
received certain sums of money.
My Lord I have seen a record
showing about ข250,000,000or
thereabout, but he has also made
some supplies to them. And that
is all what we saying.
JUDGE: So
what you are disputing is the
amount?
COUNSEL FOR
DEFENDANT: The amount, that is
all. The amount.”
Indeed, as is
borne out by the record
reproduced hereunder, the
Defendant’s line of
cross-examination does confirm
their position that the
transaction was a
straightforward transaction
between the two.
“Q Mr Wolley,
the defendant never approached
you to pre-finance the business.
A He did on
so many, many occasions.
Q In fact the
arrangement was that he will
produce the material and you
will value it by negotiation and
pay for it, that is how it
started not so?
A Not so my
Lord.”
The record is
replete with this line or
pattern of cross examination in
which the Defendant affirms
their relationship as asserted
by the Respondent, but the above
will suffice. It is to be noted
that the pattern of
cross-examination is clearly
indicative of the party’s case.
We found that
the other appeal grounds, which
were all argued together under
the omnibus ground of the
judgment being against the
weight of evidence, because they
are all inter related, cannot
succeed.
The central
question arising from all these
grounds is whether the
Respondent was able to prove the
amount claimed, i.e. the sum of
ข450,000,000. In a judgment
claim such as the one before
us,the appellate court rightly
concluded that the legal
position is that the initial
burden of proof fell on the
Respondent to establish a prima
facie case, after which the
burden shifted on to the
Appellant to lead contrary
evidence. The learned justices
of Appeal, commendably, set out
the legal principles on the
burden of proof in civil
litigation, as statutorily
provided under sections 10, 11
and 14 of the Evidence Decree
NRCD 323.
The court
rightly in our view made the
following sound findings and
drew conclusions therefrom,
which cannot be disturbed since
the findings are supported by
the available record.
The first is
the admission by the Appellant
that he owed the Respondent the
sum of ข45,000,000. This
finding, contrary to the
Appellant’s argument, is clearly
supported by the record, the
transcript of which is produced
hereunder.
“…My Lord I
owe him but not that much and I
was in the process of supplying
him when the disaster occurred.
By Court: How
much do you owe him?
A The current
balance we signed in the ledger
books is ข45 million”
“I have gone
to great lengths to produce the
above sections of the Evidence
Decree to establish the fact
that once the Appellant in this
instance agreed that he owed the
Respondent ข45 million [forty
–five million] instead of ข450,
000,000 [four hundred and fifty
million cedis being claimed by
the latter, the burden of
persuasion shifted on him to
provide the necessary or
requisite evidence to rebut the
Respondent’s claim. Failure to
produce the evidence, no
reasonable mind could conclude
that the existence of the ledger
was more probable than its
non-existence.
Since the
Appellant raised the issue of a
“ledger” in which all
transactions with the Respondent
were recorded and acknowledged
by him, he had the burden of
persuasion as to this fact which
was essential to the defence he
was asserting.”
At the trial,
and in answer to a direct
question from the court, the
Respondent had emphatically
stated that:
“That is so
my Lord, these two made up the
ข450,000,000.
In coming to
the firm conclusion that the
Respondent succeeded in proving
that he was owed the sum
claimed, the Court of Appeal
made the following definitive
finding:
“From the
record of appeal we find the
combined effect of exhibit A,A1,
B D, G, and H, was to prove the
Respondent’s case as to the
Existence of the fact that the
appellant owed him ข450,
million. Strangely as stated
supra the Appellant never
rejected nor denied the any of
these recordings in these
documents.”
This primary
finding which is supported by
the record is an affirmation of
the trial court’s own finding
which reads:
“The
defendant made no effort to
challenge any part of the record
presented to him in exhibits A,
A1, B, D, H and G. He did not
single out for denial any of the
sums debited against his name as
money he had collected and show
that it was not collected by him
by showing contrary evidence. He
let all the records be admitted
by the court and stand
unchallenged and corroborated
the first balance shown on
exhibit A by admitting signing
Exhibit B.
The
Appellant failed to demonstrate
that his case fell within those
exceptions or instances where
the second appellate court may
interfere with the concurrent
factual findings of the courts
below. The findings and
conclusions thus stand and will
not be overturned.
Allied to the
argument that the claim was not
proven, is the charge that the
court erred in failing to
“appoint a referee to resolve
the accounts…when the action was
in substance one for accounts.”
This argument
lacks merit. No mandatory duty
is cast on a court to appoint a
referee, or for that matter an
expert witness, whose evidence
in any event is classified at
law as opinion evidence, and so
clearly not sacrosanct or
conclusive, if from the
available evidence, the court is
in a position to resolve the
fact at issue.
The decision
of the appellate court was
criticized on the ground that it
had endorsed the trial court’s
wrongful reliance on
inadmissible evidence to impeach
the credibility of the
Appellant. Again, this is a
wholly unsubstantiated charge.
The trial judge plainly stated
her reluctance to rely on two
written statements, Exhibits E
and F, allegedly made by the
Appellant in admission of the
claim, and produced by the two
policemen, PW2 and PW3.
Commendably, their Lordships of
the Court of Appeal, observed
that:
“There is
evidence on the record that the
learned trial judge disallowed
the evidence and chose to ignore
the statements made at the
police station by the appellant.
In respect of
impeaching the credibility of
the Appellant, the learned trial
judge in her judgment stated
that she was not placing any
reliance on the evidence of the
two policemen, so where did she
err by impeaching the
credibility of the Appellant?
She never considered the
evidence of PW2 and PW3 and
never placed any weight on them
to form her decision.”
We found no
merit in any of the appeal
grounds and hence our decision
of 29th July, 2014 to
dismiss the appeal in its
entirety.
(SGD) G. T. WOOD
(MRS.)
(CHIEF JUSTICE)
(SGD) J. ANSAH
(JUSTICE OF THE SUPREME COURT)
(SGD) V. J. M. DOTSE
(JUSTICE OF
THE SUPREME COURT)
(SGD) A. A. BENIN
(JUSTICE OF
THE SUPREME COURT)
(SGD) J. B. AKAMBA
(JUSTICE OF
THE SUPREME COURT)
COUNSEL
THOMAS
HUGHES ESQ. FOR THE
DEFENDANT/APPELLANT/APPELLANT.
OSUMAN
MOHADEEN ESQ. FOR THE
PLAINTIFF/RESPONDENT
/RESPONDENT.
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