SPINTEX LTD. vs. EVANS ATTA-EDUA [2010]DLCA5221

Date	2010-11-04
Suit No.	CIVIL APEAL NO.H1/27/2010
Citation No.	[2010]DLCA5221

MARIAMA OWUSU JA (PRESIDING)

YAW APPAU JA

MARFUL-SAU JA

SAMMY ADDO FOR PLAINTIFF/APPELLANT

NATHAN P. YARNEY FOR DEFENDANT/RESPONDENT

[2010]DLCA5221
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													<main id="main" class="content" style="min-height: 60rem" >SPINTEX LTD.<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>EVANS ATTA-EDUA<o:p></o:p>(DEFENDANT/RESPONDENT)<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;
padding:0in 0in 1.0pt 0in">

CIVIL APEAL NO.H1/27/2010&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;4TH
NOVEMBER, 2010<o:p></o:p>

</div>COUNSEL:<o:p></o:p>SAMMY
ADDO FOR PLAINTIFF/APPELLANT<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">

</div>CORAM:<o:p></o:p>MARIAMA
OWUSU JA (PRESIDING), YAW APPAU JA, MARFUL-SAU JA<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>MARFUL-SAU JA: This
is an appeal against the judgment of the High Court, Accra dated the 31st
October 2008, dismissing the plaintiff action and entering judgment for the
defendant on his counterclaim. The plaintiff is thus the appellant herein and
the defendant is the respondent. The appellant per the writ issued on 28-1-93
claimed the following:-<o:p></o:p><ol style="margin-top:0in" start="1" type="a">
 <li class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
 justify;mso-list:l2 level1 lfo1">Recovery of an amount of
 ¢110,175,349.74<o:p></o:p></li>
 <li class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
 justify;mso-list:l2 level1 lfo1">Interest at the current bank rate
 from 31/7/92 to date of final payment<o:p></o:p></li>
 <li class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
 justify;mso-list:l2 level1 lfo1">General damages for breach of
 contract<o:p></o:p></li>
</ol><o:p>&nbsp;</o:p>In
a terse statement of claim of 7 paragraphs, the appellant simply alleged that
it supplied goods to the respondent between August 1990 to July 1992 worth
¢203,656,469.08. However, in July 1992 when the respondent’s account was
audited his indebtedness stood at ¢110,175,349.74. The appellant further averred
that the respondent had failed to settle the said indebtedness notwithstanding
repeated demands.<o:p></o:p><o:p>&nbsp;</o:p>The respondent disputed
the claim and filed a 28 paragraph statement of defence and counterclaimed for
the following:<o:p></o:p><ol style="margin-top:0in" start="1" type="a">
 <li class="MsoNormal" style="text-align:justify;mso-list:l3 level1 lfo2">The
 sum of ¢6,772,000 being an amount wrongfully withheld by the plaintiff
 since November 1992.<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;mso-list:l3 level1 lfo2">Interest
 on the said sum at the prevailing bank rate from November 1992 till the
 date of final payment.<o:p></o:p></li>
</ol>&nbsp;By respondent’s defence and counterclaim the appellant
was compelled to file a 9 paragraph reply and defence to the counterclaim which
was later amended on 18-8-95: From the pleadings exchanged by the parties it is
obvious that the appellant in his statement of claim suppressed material facts
which formed the basis of the dispute. As the pleadings showed the amount
claimed by the appellant was not a simple debt arising out of goods supplied
and unpaid. Rather the real facts were that the appellant’s Chief Accountant
one Isaac Forson in the course of respondent’s dealings with the appellant
company, had instructed the respondent to be paying the cost of his supplies to
him, the Chief Accountant, so that respondent’s orders would be processed
promptly. As a result the respondent was prevailed upon by the Chief Accountant
and he paid cash and issued corresponding cheques to the Chief Accountant as
payment for his orders. Respondent after tendering the cash and corresponding
cheques to the Chief Accountant continued to receive his supplies without any
problems, till in July 1992 when his account was audited and it came to light
that the Chief Accountant was not crediting the respondent account with the
cash. When the cheques issued to the Chief Accountant were presented they were
dishonoured, hence the debt of ¢110,175,349.74 against the Respondent.<o:p></o:p>The respondent reported
the Chief Accountant to the management of appellant company and he admitted
that he failed to credit respondent account with the cash he received from him.
The Chief Accountant then gave an undertaking to settle the amount due on the respondent
account. After this event, the appellant requested the respondent to continue
the business as a result the respondent deposited an amount of ¢6,772,000 to
the appellant for further supplies. Appellant later sought to treat the amount
of ¢ 6,772,000 as payments made by the respondent to settle part of the debt
the Chief Accountant had undertaken to settle as narrated above. The
¢6,772,000.00 forms the basis of respondent’s counterclaim.<o:p></o:p>From the facts narrated
above it is clear that appellant did suppress material facts from its statement
of claim which portrayed the dispute as a case of the respondent taking delivery
of goods and simply refusing to pay for them. Appellant’s statement of claim as
formulated was contrary to the general rules of pleadings and that practice
ought to be deprecated.<o:p></o:p>At the end of the trial appellant’s
claim was dismissed and respondent’s counterclaim was upheld by the trial
court. This appeal is thus against the dismissal of the appellant’s claim with
a prayer that this court sets aside the judgment of the court below and
judgment entered for appellant.<o:p></o:p>