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JUDGMENT:
The Plaintiff herein has sued
the Defendant for:
“ 1. Recovery of the sum of
one hundred and eighty-three
thousand three hundred and
sixty-eight Euros
(Euros183,368.00) being the
outstanding balance together
with the accrued interest and
sixteen thousand seven hundred
and thirty-eight dollars and
sixteen cents being the
outstanding balance on the parts
supplied the Defendant by the
Plaintiff which sum the
Defendant has refused to pay
despite several demands.
2. Interest on
the said sum at the contractual
rate of 20%
per annum from the 1st
of January 2010 to the date of
final payment.
3. Costs
including Solicitors fees”
Per its pleadings, the
Plaintiff’s case is that on or
about November 2008 the
Plaintiff supplied a New Holland
385 Excavator for the benefit of
the Defendant valued at two
hundred and ninety one thousand
two hundred and seventy-five
Euros (Euros 291,275.00). Prior
to the delivery of the machine
the Defendant made a deposit of
$50,000 towards the purchase of
the equipment
The parties agreed that the cost
of the machine would be spread
over a twelve month period, in
twelve equal instalments of
twenty three thousand four
hundred and forty four Euros and
forty-five cents (Euro
23,444.45) per month ending the
15th day of August
2009. On the 19th of
May 2009, the Defendant paid a
sum of one hundred thousand
cedis (GH¢100,000). Before then
all efforts to get the Defendant
to honour his obligations
towards the Plaintiff had proved
futile.
In the cause of their dealings
with the Defendant the Plaintiff
supplied certain parts to the
Defendant by way of after sales
service. The total cost of the
parts was sixteen thousand
United States Dollars
(USD$16,000). It was a term of
the contract that any balance
outstanding after the due date,
would attract a late payment
interest of 20% per anum.
The Defendants despite several
demands on them have neglected
and or refused to pay the cost
of the equipment and spare parts
supplied.
Having been served with the
Plaintiff’s Statement of Claim
the Defendants on the 21st
day of June 2010, filed a
defence to the Plaintiff’s
action. The Defendant’s lawyer
however withdrew his
representation on the 24th
of February 2011. As a result
of this the Court ordered that
the Defendant be served
personally in Tarkwa, which
order was carried out.
Defendant however failed to
attend Court, and having failed
so to do, the Plaintiff opened
its case on the 12th
of May 2011.
The Plaintiff’s Parts Manager
and Acting Country Manager,
Charles Martey gave evidence to
the effect that the Defendant
had taken delivery of the
machine and spare parts but
refused to pay for same despite
several demands on him to do
so. In support of the above
assertion the Plaintiff tendered
in evidence Exhibits “A”, ”B”
and “B1” which were the invoices
for the machine and parts.
Mr. Martey went on further to
state in his evidence that the
goods were in fact delivered to
the Defendant and that the
machines are currently in their
possession. He tendered in
evidence, a number of
correspondences between the
parties in support of the
Plaintiff’s case, (Exhibits “C”,
“D”,& “E”). Exhibit “F” is a
reply from the Defendant to one
of the letters referred to
above, in which Defendant stated
that they were sourcing funds
from the UK to make some payment
to the Plaintiff.
It is trite learning that after
a Plaintiff has adduced
sufficient evidence to discharge
the burden on it, the burden
shifts to the Defendant to debut
the Plaintiff’s case by leading
evidence. The Defendant herein
also had a duty to cross-examine
Charles Martey. There is
abundant case law on the effect
of a party not cross-examining a
witness. The principle was
enunciated by Brobbey J (as he
then was) in the case of
Hammond v. Amuah [1991]
1 GLR 89 at pg 91
as follows:
“The law is quite settled that
where a party makes an averment
and that averment is not denied,
no issue is joined and no
evidence need to be led on that
averment. Similarly, when a
party has given evidence of a
material fact and is not
cross-examined upon it, he need
not call further evidence on
that fact. See
Fori v. Ayirebi (supra).
Indeed it was held in the case
of
Quargraine v. Aikins [1981] 1
GLR 599, CA
that where a party made an
averment and his opponent fails
to cross-examine on it, the
opponent will be deemed to have
acknowledged sub silentio, that
averment by failure to
cross-examine"
In the case of
Takoradi Flour Mills v. Samir
Faris [2005-06] SCGLR
882,
Ansah JSC referred to the case
of
Tutu v. Gogo, Civil
Appeal No. 25/67, dated 28th
April 1969,
Court of Appeal unreported;
digested in 1969 CC76 where
Ollenu JA said that:
“In law, where evidence is led
by a party and that evidence is
not challenged by his opponent
in cross-examination, and the
opponent did not tender evidence
to the contrary, the facts
deposed to in the evidence are
deemed to have been admitted by
the party against whom it is
led, and must be accepted by the
Court”.
As stated above, the Defendant
did not lead any evidence at
all. The position of the law
was succinctly put in the case
of In Re Krah (decd);
Yakeraah and Others v. Osei-Tutu
and Anor [1989-90] 1 GLR 638 at
639 SC as follows:
“Having failed to put their case
across, the Defendants must be
presumed to have accepted the
case put forward by the
plaintiff unless an amendment
was made and evidence led to
support the amendment.”
In my opinion, Charles Martey
led credible and cogent evidence
to prove Plaintiff’s case that
the Defendant was in fact
indebted to it, and I believe
him. I will therefore give
judgment in favour of the
Plaintiff on the four corners of
Charles Martey’s evidence. I
will accordingly hold that
Plaintiff is entitled to the
reliefs it is seeking and order
that Defendant pay to Plaintiff
the amounts of Euros 183,368.00
and US$16,738.16 or their cedi
equivalents, together with
interest at the contractual rate
of 20% per annum from 1st
January 2010 to date of final
payment.
Costs of GH¢3,000 awarded
against Defendant.
BARBARA ACKAH-YENSU (J)
JUSTICE OF THE HIGH COURT
COUNSEL
NAA ODOFOLEY NORTEY
- PLAINTIFF
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