TEMA STEEL COMPANY LTD vs. OHENESE AKWASI GYAMBIBI [2010]DLCA6597

Date	2010-12-02
Suit No.	SUIT NO. H1/105/2010
Citation No.	[2010]DLCA6597

HENRIETTA ABBAN (MRS) J A (PRESIDING)

S. E. KANYOKE JA

K. A. ACQUAYE JA

MR. ABDALLAH ALHASSAN FOR PLAINTIFF/RESPONDENT

MR. MAWUENA AGBENOTO FOR DEFENDANT/APPELLANT

[2010]DLCA6597
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													<main id="main" class="content" style="min-height: 60rem" >TEMA STEEL
COMPANY LTD<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>OHENESE
AKWASI GYAMBIBI<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p><o:p>&nbsp;</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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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">SUIT
NO. H1/105/2010&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;DATE:
2ND
DECEMBER 2010<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">MR. MAWUENA AGBENOTO FOR
DEFENDANT/APPELLANT <o:p></o:p>

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115%;mso-outline-level:1;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">HENRIETTA ABBAN (MRS), J A
(PRESIDING) S. E. KANYOKE, JA AND K. A. ACQUAYE, JA<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>K.
A. ACQUAYE, J.A. <o:p></o:p>The
Plaintiff/Respondent (hereinafter called the Respondent) took out a writ
claiming a refund of the sum of ¢142,850,000 (Gh¢14,285) paid to the
Defendant's/Appallant's company through its Commercial Manager, Simon Segbo for
the purchase of steel rods which they failed to deliver together with interest
and costs. The Respondent’s case was that in September and October 2004 he went
to the Defendant/Appellant's (hereinafter referred to as the Appellant) offices
to inquire about the purchase of steel rods the Appellant was producing. He was
introduced to the Commercial Manager of Appellant Company called Simon Segbo
who gave him a price list of the company's products. The said Simon Segbo
informed the Respondent that if he wanted to receive the steel rods the same
day he should issue cash cheque for payment of same. The Respondent wrote out a
cash cheque for ¢142,850,000.00 (Gh¢14,285) to Simon Segbo as the Commercial
Manager of Appellant company and the latter issued an official receipt to him.
Pursuant thereto Simon Segbo informed the Respondent that there was a shortage
of the steel rods so the respondent would receive the steel rods within the
week. The Appellant failed to supply the steel rods and on his inquiry the
Appellant company sought to distance itself from the transaction on the grounds
that the Commercial Manager had absconded with the money paid. The Appellant
refused to supply the steel rods nor pay back the money. It is the contention
of the Respondent that Simon Segbo received the money as the Commercial Manager
of the Appellant in the normal course of his employment and he the Respondent
cannot be held liable for the integrity of the Appellant's staff. <o:p></o:p>The
Appellant's defence was that since 25th October 2003 they had instituted a
system whereby details of all visitors to the company's premises are recorded
by the security at the main gate which shows that the Respondent came to the
premises on 28th October 2004, 11 November 2004 and 16th November 2004. The
Appellant maintained that Simon Segbo had no mandate to accept orders and
collect money on behalf of the Appellant. The Appellant insisted all visitors
and customers of the company are aware that orders for their products are dealt
with by the sales department who issue invoices for the customers to make
direct payments to the bankers of the company as no payments are made at the
company's premises due to a series of armed robberies. The Appellant denied any
record of payment of ¢142,850,000 (Gh¢14,285) or cashing that amount and said
the receipt tendered by the Respondent was stolen from them which they had
reported to the police. The Appellant said the Respondent was reckless in his
dealings with Simon Segbo since he should have been more prudent and diligent
and that they were not liable to the claims of the Respondent. <o:p></o:p>After
assessing the evidence led by the parties the trial judge found that the
Respondent paid the sum claimed to Simon Segbo in his capacity as the Commercial
Manager of the Appellant. The judge also found that the Respondent had no
opportunity to know that the cheque would not be cashed by the Appellant but by
Simon Segbo for himself and that if a servant does an act mistakenly that which
he was authorized to do correctly, his master will answer for that negligence
fraud or mistake. The judge thus gave judgment in favour of the Respondent and
held him entitled to all reliefs endorsed on the writ of summons with costs of
GH¢2,000.00 <o:p></o:p>Dissatisfied
with the judgment the Appellant filed an appeal setting forth four grounds of
appeal. The grounds are:- <o:p></o:p>1.
Judgment is against the weight of evidence. <o:p></o:p>2.
The learned Trial Judge did not adequately consider the case put up by the
Defendant. <o:p></o:p>3.
The Learned Trial Judge did not appreciate the issues raised and addressed by
the Defendant in the judgment, which misled him to come to the wrong
conclusions in the suit. <o:p></o:p>4.
The Learned Trial Judge did not consider whether there was a valid contract
between the parties. <o:p></o:p>