AKOSAH vs. OWUSU [1963]DLSC1914

Date	1963-07-05
Suit No.
Citation No.	[1963]DLSC1914

ADUMUA-BOSSMAN JSC

CRABBE JSC

AKUFO-ADDO JSC

VICTOR OWUSU WITH HIM OHENE-AMPOFO FOR THE APPELLANT

K. NARAYAN FOR THE RESPONDENT.

[1963]DLSC1914
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AKOSAH

[SUPREME COURT]

[1963] 2 GLR 277

DATE: 5TH JULY, 1963.

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COUNSEL:&nbsp;&nbsp;

VICTOR
OWUSU WITH HIM OHENE-AMPOFO FOR THE APPELLANT.

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ADUMUA-BOSSMAN, CRABBE AND
AKUFO-ADDO JJ.S.C.

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&nbsp;

The plaintiff was at all material times a storekeeper at Koforidua
for Messrs. Commonwealth Trust Ltd. which has now ceased to exist, having been
absorbed into the Ghana National Trading Corporation. The defendant is a timber
contractor living at Tafo.

Some time in 1958 the defendant finding himself in financial
difficulties approached the plaintiff for help. So much is admitted on both
sides, and the claim in the action in this appeal arose out of that
circumstance.

The plaintiff’s claim endorsed on a specially endorsed writ was
“for the sum of £G 1,443 9s. 8d. money payable by the defendant to the
plaintiff for money paid by the plaintiff to Commonwealth Trust Ltd. at the
defendant’s request for goods sold and delivered to the defendant from about
the 6th November, 1958, to about the 31st January, 1959.” It is a somewhat
clumsily worded claim; no application was made for summary judgment, but the
defendant delivered a defence in which he pleaded as follows:

“1. That the defendant denies the allegation in the plaintiff’s
statement of claim that the plaintiff paid an amount of £G1,443 9s. 8d. to the
Commonwealth Trust Ltd. at the request of the defendant for goods sold and
delivered to the defendant. 2. In further answer to the plaintiff ‘s statement
of claim the defendant says that in the year 1958, while the defendant was ill
the defendant’s brother obtained goods from the plaintiff who was then the
storekeeper of Messrs. Commonwealth Trust Ltd., Koforidua, to the value of
£G400.

3. That the defendant upon his recovery adopted the debt of £G400
due to the plaintiff for goods sold and delivered to the defendant’s brother
for the use of the defendant. 4. That in the month of June, 1960, at the
request of the plaintiff an arbitration was held at Old Tafo in respect of this
claim; and that the amount due to the plaintiff by the defendant was found to
be £G148 and not £G1,443 9s. 8d. as alleged in the statement of claim. 5. That
the plaintiff is bound by the award of the arbitration. 6. That the defendant
admits liability in the sum of £G148 only. 7. That at the trial the defendant
will plead that by reason of the arbitration award aforesaid, the plaintiff is
estopped from re-opening the transaction. Dated at Kadore Chambers, Accra, this
21st October, 1960.”

In the light of the facts that emerged from the evidence that
defence was a somewhat soul-less and an unenterprising piece of pleading.

On the 9th March, 1961, counsel for the defendant is recorded to
have made the following submission in the court below: “... that to do
substantial justice to the parties this case should be referred to a referee to
go into the accounts between the parties and to report to the court.” Counsel
for the plaintiff raised no objection to this submission, and the trial judge
thereupon made an order appointing the Senior High Court Registrar a referee to
enquire into the accounts between the parties and to investigate or try any
issues of fact relating thereto.

One of the issues which the referee had to determine was the
nature of the transaction between the parties. The referee’s finding on this
issue and the trial judge’s alleged failure to deal with that finding formed
one of the grounds of appeal that were argued before us, and since a
determination of the nature of the transaction between the parties is essential
for the determination of the nature of the accounts to be taken between them, I
think it necessary first to deal with that aspect of the appeal.

The plaintiff’s evidence at the hearing by the referee was that
when the defendant approached him for financial assistance he told him he had
no money to give him, and it was agreed that the plaintiff should supply the
defendant goods on credit which he the defendant could sell at reduced prices
in order to raise the money he needed. Goods according to the plaintiff were
supplied to the defendant on four occasions and the amount claimed by his writ
of summons was the balance due in respect of the prices of these goods. The
defendant, on the other hand, contended that the plaintiff did actually lend
him money upon which he charged interest, but the plaintiff suggested that as
the money he lent to the defendant was the property of his employers and as he
(the plaintiff) would not be able to account for it in his books it was
necessary to give the transaction</main>