THOMAS GADI vs. CONZABILI TRD. & CONST LTD MR. KOJO NEWTON [2006]DLCA6637

Date	2006-04-07
Suit No.	CIVIL APPEAL H1/315/2005
Citation No.	[2006]DLCA6637

ASARE KORANG J.A. [PRESIDING]

ERIC PIESARE J.A.

TWENEBOA-KODUA J.A

D.A. OTOO FOR BODZA LUMOR FOR PLAINTIFF/RESPONDENT

BAFFOUR DWOMOH FOR 2ND DEFENDANT/APPELLANT

[2006]DLCA6637
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													<main id="main" class="content" style="min-height: 60rem" >THOMAS GADI<o:p></o:p>(PLAINTIFF/REST)<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; vs.<o:p></o:p>CONZABILI
TRD. &amp; CONST LTD<o:p></o:p>(DEFENDANTS)<o:p></o:p>MR. KOJO
NEWTON<o:p></o:p>(2ND
DEF./APPELLANT.)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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APPEAL H1/315/2005&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 7TH APRIL, 2006<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">D.A. OTOO FOR BODZA LUMOR
FOR PLAINTIFF/RESPONDENT <o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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DEFENDANT/APPELLANT. <o:p></o:p>

ASARE KORANG J.A. [PRESIDING], ERIC
PIESARE J.A., TWENEBOA-KODUA J.A<o:p></o:p>

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</div>ASARE
KORANG, J.A. <o:p></o:p>This
appeal turns on only one issue namely the terms of a profit sharing agreements
entered into between the 2nd defendant/appellant [2nd defendant for short
hereinafter] and the plaintiff/respondent [plaintiff for short]. <o:p></o:p>The
undisputed facts in this case are as follows:— <o:p></o:p>The
1st defendant herein, Conzabili Trading and Construction Limited entered into a
contract to supply a fuel truck and fuel reading and pumping machines to an
entity called AMS. As the 1st defendant was facing financial problems in
executing the contract, the plaintiff who had friendly connections with both
defendants, introduced the 1st defendant’s manager to the 2nd defendant for the
latter to give financial assistance to the 1st defendant in executing the
contract. Thereafter the 2nd defendant gave money to the 1st defendant to
enable the 1st defendant fulfill its obligations under the contract it had
entered into with AMS. Profits earned by 1st Defendant under the contract were
shared with 2nd defendant and as between the plaintiff and 2nd defendant it was
arranged that the 2nd defendant would pay a percentage of the profits enjoyed
by him to the plaintiff on account of the plaintiff introducing the 2nd
defendant to the business of the 1st defendant. It was contended by the
plaintiff that the portion of 2nd defendant’s profits or net income he was
entitled to was 50%. In other words, it was a 50-50 profit sharing agreement.
The 2nd defendant, on his part, said the arrangement was that plaintiff would
be paid 35% or one third of net income. From the evidence on record, certain
payments were made to the plaintiff by the 2nd defendant. <o:p></o:p>These
payments, based on 50% sharing, as contended by the plaintiff were captured in
the evidence of the plaintiff as follows:— <o:p></o:p>"The
work stated in August 2002. The 1st defendant did not pay in August but in
September. The monies paid for September, is [sic] ¢27 485,000.00 and my part
is [sic] ¢13,742,500.00. The 2nd defendant only gave me ¢5,000.000.00. For
October which was paid in November, was ¢26,333,000.00 and my portion should be
¢13,166,500.00 and 2nd defendant gave me ¢8,300,000.00 leaving a balance
¢4,866,500.00. The November, paid in December, was ¢21,585,000.00, my share
should be ¢10,792,500.00 but the 2nd defendant gave me ¢7,554,950.00 leaving a
balance or ¢3,237,750.00. The January paid in February 2003 was ¢21,585,000.00
and I should be entitled to ¢10,792,500.00. The 2nd defendant gave me
¢7,554,750.00. The February which was paid in March was ¢26,330,000.00. I was
entitled to ¢13,166,650.00. The 2nd defendant paid me ¢10,000,000.00 leaving a
balance of ¢3,166,650.00……… Then March, an amount of ¢69,000,000.00, my share
was to be ¢34,500,000.00. He paid me ¢7,500,000.00 leaving ¢27,000,000.00. The
outstanding balance the 2nd defendant should pay is ¢56,444,000.00. I went to
2nd defendant and he said he will not pay me. I need my money, hence, this
action" <o:p></o:p>The
2nd defendant in his evidence, also stated. <o:p></o:p>"I
told the plaintiff that due to his introduction I will give him 1/3 or the net
income. I did not agree with the plaintiff to give him ½ of the net
income."<o:p></o:p>