B.B.C. TRADING CO., LTD vs. BASSIL [1963]DLHC1995

Date	1963-03-02
Suit No.
Citation No.	[1963]DLHC1995

PREMPEH J

NII ODOI ANNAN FOR THE PLAINTIFFS

TWUM BARIMA FOR THE DEFENDANT

[1963]DLHC1995
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B.B.C. TRADING CO., LTD

[HIGH COURT, ACCRA]

[1963] 1 GLR 209

DATE: 2ND MARCH, 1963.

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COUNSEL:&nbsp;&nbsp;

NII ODOI ANNAN FOR THE
PLAINTIFFS.

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PREMPEH J.

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&nbsp;

In this action, the plaintiffs claimed against the defendant the
sum of £G1,076 11s. 7d being an amount due to them for the goods sold and
delivered to the defendant. The defendant by his lawful attorney filed a
defence admitting the plaintiffs’ claim, but counter-claimed from the
plaintiffs the sum of £G2,000 being an amount the payment of which was
guaranteed by the plaintiffs.

In the counter-claim, it was pleaded that the defendant lent the
sum of £G1,000 to one Mr. Nakouzi for which two cheques each for £G500 were
issued by him in favour of the defendant for the payment of the debt, and that
the repayment of this amount was guaranteed by the plaintiffs. It was further
pleaded that the defendant lent also to one Mr. Koudsi the sum of £G1,000 for
which a cheque for the sum of £G1,000 was issued by him in favour of the
defendant for the payment of the debt, and that the repayment of this amount
was guaranteed by the plaintiffs. He averred those cheques were dishonoured on
presentation, but that in spite of repeated demands the plaintiffs had failed
to make payment of the total sum of £G2,000.

In answer to this counter-claim the plaintiffs—apart from denying
having guaranteed the payment of the debts due by Nakouzi and Koudsi—averred
that the transactions were unlawful in so far as the sums of money in both
cases were lent at interest of £G50 per month per G1,000. They averred further
that if there was any guarantee—which they denied—the alleged guarantee did not
comply with the Statute of Frauds, 1677, s. 41 and was therefore unenforceable.
On the 6th September, 1962, judgment was entered with costs for the plaintiffs
on their claim and the hearing of the counter-claim was then adjourned. In
these circumstances I called upon the defendant to begin.

According to the evidence of the defendant’s lawful attorney in
Ghana, the defendant has been deported from the country but his business
continues by his attorney and the chief clerk of the business was called as the
first defence witness. This man has impressed me as a witness of truth, and I
accept his evidence that he was present when the two friendly loans were given
by the defendant to Nakouzi and Koudsi on which he charged no interest, and
that he was the person who wrote out the cheques which were post-dated for the
said friendly loans which were signed by the defendant. I accept his further
evidence that he was present when Elia Bou Chedid, one of the managing
directors of the plaintiff-company, wrote at the back of the two post-dated
cheques issued in favour of the defendant by Mr. Nakouzi and marked exhibits A
and A1, guaranteeing the payment of the said debt, that he then signed his name
underneath the writing and then put the plaintiff-company’s stamp over his
signature. I accept also his evidence that he was present when the said Elia
Bou Chedid wrote at the back of the cheque issued in favour of the defendant by
Mr. Koudsi and marked exhibit B, guaranteeing payment of the said debt, and
that he then signed his name underneath the writing.

It has been admitted on behalf of the plaintiffs that Elia Bou
Chedid is one of the managing directors of their company and can transact
business to bind that company. Some questions were put to D.W.1., purporting to
show that he did not witness any of the transactions, but P.W.1, Mr. Nakouzi,
quite frankly admitted that this witness did see him write the two cheques
exhibits A and A1. In defence of the counter-claim, the plaintiffs centered
their attack mainly on exhibits A and A1. They did not in fact call any
evidence in respect of the cheque marked exhibit B. They sought to contend that
their company’s stamp was not put on exhibits A and A1 by the managing
director, the said Elia Bou Chedid, but that those cheques were so stamped by
the defendant himself. This indeed is a serious imputation against the defendant.

However, in seeking to substantiate that contention, the
plaintiffs called one of their storekeeper-employees, P.W. 2, who deposed that
the defendant went to his store and after showing him two cheques the defendant
told him that Elia Bou Chedid had directed that it should be stamped, and that
although it was to his full knowledge that the said Elia Bou Chedid had one of
those stamps in his office it did not strike him that that was an odd
situation, but rather he permitted the defendant to pick the stamp which was
then on his table and then with impunity he stamped those cheques and went
away. He further deposed that he did not even ask to be given the cheques to
examine them, nor did he ever at any time thereafter check up with Elia Bou
Chedid whether he had directed the defendant to him to stamp those cheques.