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JUDGMENT:
The Plaintiff herein has sued
the Defendant for:
“a. An Order for recovery of
the sum of GH¢689,024.48 being
balance due and owing as at
April 16, 2008 an account of
petroleum products supplied to
Defendant by erstwhile Total
Ghana Limited and Plaintiff
repayment of which Defendant has
failed to make good several
demand notices notwithstanding.
b. Interest on the said sum of
GH¢689,024.28 at the prevailing
Commercial Bank lending rate
from April 16, 2008 up to and
inclusive of date of final
payment.
c. Costs.
Per its pleadings, the
Plaintiff’s case is that in
September, 2005, Total Outremer
(TOM) a subsidiary of Total SA
acquired from Mobil Holdings UK
Limited 60% shares in Mobil Oil
(Ghana) Limited. Mobil Oil
(Ghana) Limited and Total
(Ghana) Limited subsequently
proposed to merge the operations
of the two companies. On
September 6, 2006, Mobil Oil
(Ghana) limited passed a special
resolution whereupon the name of
Mobil Oil (Ghana) Limited was
changed to Total Petroleum Ghana
Limited. On 27th
October, 2006, Total Petroleum
Ghana Limited and Total Ghana
Limited merged and retained the
name Total Petroleum Ghana
Limited.
Following the merger, Total
Ghana Limited went into private
liquidation as a result of which
the private liquidator
transferred its undertakings or
assets to Total Petroleum Ghana
Limited in consideration of
fully paid shares in Total
Petroleum Ghana Limited in
accordance with their rights
under liquidation. Prior to
October 27, 2006, the erstwhile
Total Ghana Limited supplied the
Defendant Company with petroleum
products. Pursuant to the
merger of the erstwhile Total
Petroleum Ghana Limited, under
the name Total Petroleum Ghana
Limited, the balance on the
account of Defendant Company in
respect of petroleum products
supplied to Defendant Company by
erstwhile Total Ghana Limited
was transferred to Plaintiff
Company.
As at April 16, 2006, Plaintiff
Company had supplied Defendant
Company with various quantities
of petroleum products through
account numbers 102974 and
103791. As at April 16, 2008,
the amounts due and owing on
Defendant’s account in respect
of petroleum products supplied
to it by Plaintiff Company stood
at GH¢689,024.48 and the details
are as follows:
1.
Account No.
102974 -
GH¢606,429.10
2.
Account No.
103791 -
GH¢82,595.38
Defendant however has failed or
refused to pay the said amounts
in spite of final demand notice
served on them per letter dated
April 28, 2008.
The Defendant, on the other
hand, denies owing the amount
being claimed and contends that
by its reconciliation of the
account on fuel lifting as per
Plaintiff’s own debt notes
available and per official
station form/tally cards, the
figures obtained thereby do not
agree with or support
Plaintiff’s claim. Defendant
contends further that it wrote
to the Plaintiff on 13th
and 20th May, 2008
respectively, disputing the
quantum of indebtedness to
Plaintiff and calling for
reconciliation of the accounts
to establish Defendant’s
indebtedness, if any, but
Plaintiff has refused to accept
to do so. It is therefore
Defendant’s contention that it
is only by going into accounts
that the true picture of the
transactions between the parties
can be established. Defendant
also states that it has shown
good faith by paying $50,000 to
Plaintiff pending reconciliation
of accounts and is ever ready to
pay any amount that shall come
out from a reconciliation of
accounts.
At the commencement of the
trial, the Plaintiff applied to
the Court for appointment of an
Accountant to go into accounts
of the parties. The application
was not opposed to by the
Defendant since the decision to
go into accounts was reached by
consensus of the parties. The
Court granted the application
and an Order made appointing
Interlysis & Associates to go
into accounts.
Mr Ben Korley, the
representative of Interlysis &
Associates tendered the report
in evidence as Exhibit “CE1”,
and he was cross-examined on it
by both Counsel for the parties.
Mr Korley’s evidence under
cross-examination by Counsel for
Plaintiff was that he did a
reconciliation of the accounts
based upon statements, invoices
and receipts received from both
parties. His conclusion was that
Defendant is indebted to the
Plaintiff in the sum of
GH¢608,404.00 as at the time the
suit was filed. His evidence was
that Plaintiff’s claim was
reduced by an amount of
$4,000.00 which was a payment
made directly by Ghana Bauxite,
who are customers of the
Defendant, to the Plaintiff, but
which payment had not been
captured by Plaintiff in its
books.
His further evidence was that
the total value of products
supplied per invoices was
GH¢3,725,991.00; total value of
products supplied by Tom Cards
was GH¢6,050; and bank charges
was GH¢286, bringing the sum
total to GH¢3,732,327.00. He
also testified that Defendant
made a total payment of
GH¢3,229,925.00, out of which
GH¢203,165.40 was returned
unpaid by the bank. His further
testimony was that the amount of
GH¢609,404.00 is the balance due
after deduction of payments made
by the Defendant as at 16th
April 2008.
Under cross-examination by the
Defence Counsel, Mr. Korley’s
testimony was that per the
Defendant’s statement submitted
to him, there was a 2nd
payment by cheque made by Ghana
Bauxite on behalf of Defendant
in the sum of $3,000.00, but
there was no evidence that the
said amount was received by
Plaintiff.
The Plaintiff adduced evidence
in support of its pleadings
through its Consumer Sales
Manager, Yaw Barima Twum. His
evidence was that Plaintiff
commenced business with
Defendant between 21st
February, 2005 and 16th
April, 2008. The Company was
then known as Total Ghana
Limited, which company took over
Mobil Oil Ghana Limited. In
October 2005, the two companies
merged and the new company was
known as Total Petroleum Ghana
Limited. Mr Twum’s further
evidence was that Total
Petroleum Ghana Limited operated
two accounts for the Defendant.
Account number 102974 had a
total debt of GH¢2,943,464.04 as
at 16th April 2008;
the credit amounted to
GH¢2,386,285.35, leaving a net
debit balance of GH¢557,178.69.
As at 16th April
2008, the 2nd
account, number 103791, had a
cumulative debit of
GH¢1,503,833.66 and a total
credit of GH¢1,379,581.31
leaving a net debit of
GH¢124,252.35. His evidence was
that the sum total of the
outstanding debt is
GH¢681,431.04.
Mr Twum tendered in evidence the
final demand notice that
Plaintiff sent to Defendant
(Exhibit “A”). The response to
Plaintiff’s final demand notice
was tendered in the evidence
through Mr. Twum when he was
cross-examined, (Exhibit “1”) in
the said letter Defendant
questioned the quantum of the
outstanding debt. Defendant
subsequently wrote to Plaintiff
(Exhibit “B”) to confirm
“proposals made to Plaintiff,
subject to a final
reconciliation”. A cheque for
$50,000.00 was attached to
Exhibit “B” as the first
instalment payment. Mr Twum also
tendered in evidence another
letter (Exhibit “C”) from the
Defendant in which it was
proposing that the Plaintiff
open another account for
Defendant to receive payments on
account only. Defendant, in the
said letter, also requested that
urgent reconciliation be done.
The statement of account
prepared by Plaintiff and
tendered in evidence by Mr Twum
(Exhibit “D”) states the total
outstanding debt owed by the
Defendant to be GH¢681,431.04;
the same amount as stated in
Exhibit “CE1”.
After the cross-examination of
Mr Twum by Counsel for
Defendant, the trial was
adjourned for the Defendant to
open its defence. Neither the
Defendant nor its Counsel
appeared in Court on the agreed
date. After a number of
adjournments to give the
Defendant the opportunity to
open its defence and their
failure to appear in Court, the
Defendant was deemed not to be
interested in defending the suit
and the case was closed. This
position was expounded in the
case of Ankumah v City
Investment Co Ltd [2007-2008]
SCGLR 1064.
It is trite learning that
pleadings are not substitute for
evidence. Our Evidence
Decree, 1975 (N.R.C.D 323)
as interpreted in Ababio v.
Akwasi III [1994-95] Ghana Bar
Report, Part II, 74 is
that a party whose pleadings
raise an issue essential to the
success of the case assumes the
burden of proving such issue.
By section 21 (a) and (b) of the
Evidence Decree, a Judge may
find that the evidence of the
party with the right to begin
has so effectively established
the basic facts that a
reasonable mind must necessarily
conclude that their existence is
more probable than their
non-existence. Where this
situation arises, the Judge has
to find that the resulting
presumed facts have been
established; that is, a prima
facie case has been
established in favour of the
plaintiff or the person on whom
lies the burden of persuasion,
unless and until the party
against whom the presumption
operates proves the
non-existence of the presumed
fact. As stated by Justice Mensa
Boison JA in the case of
Acquaye v. Awotwi [1982-83] 2GLR
110, the testimony of a
plaintiff is presumptive
evidence which is rebuttable.
Thus in Re Ashalley Botwe
Lands: Adjetey Agbosu & Ors v.
Kotey & Ors [2003-04] SCGLR 420,
the Supreme Court per Brobbey
JSC reiterated the position of
the law that it is the duty of
the plaintiff who took the
defendant to court to prove what
he claimed he is entitled to
from the plaintiff. However, if
the court has to make a
determination of a fact or of an
issue and that determination
depends on evaluation of facts
and evidence, the defendant must
realise that the determination
cannot be made on nothing. If
the defendant desires the
determination to be made in his
favour, then he has the 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.
The Defendant herein therefore
had a duty to lead evidence to
rebut the evidence adduced on
behalf of the Plaintiff, but he
failed to do so.
The position of the law was
succinctly stated in the case of
In Re Krah (decd); Yankyeraah
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 …………..”
In my view, Mr Twum led credible
and cogent evidence to prove the
Plaintiff’s case that the
Defendant is in fact indebted to
it, and I believe him. My hand
is further strengthened by the
evidence and report (Exhibit
“CE1”) of the Court-Appointed
Accountant/Auditor, Mr Korley.
The total outstanding balance
owed to Plaintiff is stated in
both Exhibits “CE1” and Exhibit
“D” as GH¢681,431. The evidence
of Mr Korley however, is that
there was a confirmed payment by
Ghana Bauxite which had not been
credited to the Defendant’s
account with Plaintiff. This,
together with other deductions,
left an outstanding balance of
GH¢608,404 due and owing by the
Defendant. I will accept the
evidence of Mr Korley and give
judgment in favour of the
Plaintiff on the four corners of
Mr Korley’s evidence.
I will accordingly hold that the
Plaintiff is entitled to recover
from the Defendant the sum of GH¢608,404,
and order the Defendant to pay
same to the Plaintiff. I will
further hold that the Defendant
shall pay interest on the said
amount of GH¢608,404 at the
prevailing bank rate from April
16, 2008 up to date of final
payment.
Costs assessed at GH¢5,000
against the Defendant.
(SGD)
BARBARA ACKAH-YENSU (J)
JUSTICE OF THE HIGH COURT
COUNSEL
GEORGE BEKAI
- PLAINTIFF
KOMLA ONNY
- DEFENDANT
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