WILSON vs. BROBBEY [1973]DLHC2339

Date	1973-11-30
Suit No.
Citation No.	[1973]DLHC2339

OSEI-HWERE J.

EWUSIE-WILSON FOR THE APPELLANT.

OPPONG FOR THE RESPONDENT.

[1973]DLHC2339
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">WILSON<o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">&nbsp;vs. <o:p></o:p><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:Times;
mso-bidi-font-family:Times;color:#548DD4;mso-themecolor:text2;mso-themetint:
153">BROBBEY<o:p></o:p>&nbsp;[HIGH COURT, SUNYANI]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1974] 1 GLR 250<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
30 NOVEMBER 1973.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

EWUSIE-WILSON
FOR THE APPELLANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

OSEI-HWERE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.<o:p></o:p>This
appeal arose as the result of the judgment delivered in the
plaintiff-respondent’s favour by the District Magistrate Grade I, Sunyani. In
the court below the plaintiff made a very simple claim against the
defendant-appellant (hereinafter called the defendant) for the sum of ¢231.00
being the value of store goods credited by the defendant from the plaintiff. At
the trial the plaintiff supported his claim with an invoice on the goods which
the defendant had signed. Although the defendant admitted that he signed the invoice
on the goods yet he contended that he did so merely as a guarantor on behalf of
one F. L. Andoh who really credited the goods. The trial magistrate found that
exhibit A spoke for itself in that the defendant signed it as a purchaser and
not as a guarantor. He arrived at a conclusion as to how the defendant came to
sign exhibit A and he ultimately gave judgment for the plaintiff on the
strength of the “oral testimony coupled with exhibit A.” It is against this
judgment that the defendant has appealed.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant’s counsel filed three original grounds of appeal whereof the first
challenged that the judgment is against the weight of evidence. The other two
grounds were clearly designed as grounds of appeal against the interlocutory
order made by the trial magistrate in refusing the defendant’s application for
joinder of the said F. L. Andoh as co-defendant. The defendant’s counsel was
precluded from arguing these last two grounds which he sought to “expound” as
he had not first sought leave, and within the proper time, to appeal against
the interlocutory order: see section 19 (4) of the Courts Act, 1971 (Act 372),
and Order 53, r. 4 of the Courts Ordinance, Cap. 4 (1951 Rev.), Sched. II. The
defendant’s counsel, therefore, argued his supplementary ground of appeal which
was as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
learned trial magistrate misdirected himself in law when he failed to make an
inference from the available evidence on record that the contract was one of
guarantee and therefore the defendant being the guarantor could not be held
primarily liable.”<o:p></o:p><o:p>&nbsp;</o:p>I do not
find any substance in counsel’s attack of the judgment that it was against the
weight of evidence. What counsel sought to impress upon the court was that
there was this F. L. Andoh in the picture whose presence the plaintiff and his
witnesses were denying. The trial magistrate, indeed, found in the defendant’s
favour that this man featured prominently in the whole transaction. This is the
relevant part of the judgment:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“According
to the defendant and his witnesses it was Andoh who offered to buy the iron
sheets on credit. I am inclined to believe this piece of evidence. What
happened in the present case was that when Andoh offered to buy the iron sheets
on credit, the plaintiff refused because of the experience he had when Andoh
credited goods from his shop. The plaintiff had to sue Andoh and his guarantor
before Andoh paid. In the present case the plaintiff did not want to take the
risk in granting credit sale to Andoh personally. So when Andoh made the
approach the plaintiff turned down Andoh’s application. Andoh finding himself
in a difficulty he fell on the defendant to purchase the iron sheets for him.
And this was what the defendant did.”<o:p></o:p><o:p>&nbsp;</o:p>This
conclusion, to my mind, is amply supported by the evidence of the defendant’s
only material witness, the defendant’s second witness, who said that the
plaintiff refused to sell to Andoh unless the defendant si</main>