EMMANUEL ADDO vs. HELINA JANTUAH [2012]DLHC3860

Date	2012-05-21
Suit No.	SUIT NO.OCC/06/13
Citation No.	[2012]DLHC3860

ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT

WILLIAM KUSI FOR THE PLAINTIFF.

NO REPRESENTIVE FOR DEFENDANT.

[2012]DLHC3860
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">EMMANUEL
ADDO<o:p></o:p></a>vs.<o:p></o:p>HELINA JANTUAH<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL DIVISION), KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT NO.OCC/06/13&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 21ST MAY, 2012<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>WILLIAM
KUSI FOR THE PLAINTIFF.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ANGELINA MENSAH-HOMIAH (MRS.)
JUSTICE OF THE HIGH COURT<o:p></o:p>

JUDGMENT<o:p></o:p>

</div>By his amended writ of summons and
statement of claim filed on 5/12/12, the Plaintiff who described himself as a
businessman claimed from the Defendant an amount of GH¢ 24, 307.00 as the
balance outstanding on a financial assistance given to her.<o:p></o:p>In his rather terse amended
statement of claim, the Plaintiff alleged that on 17/04/2012, he gave financial
assistance of twenty-four thousand, three hundred and seven Ghana Cedis (GH¢
24, 307.00) to the Defendant to be repaid by the end of June, 2012. Further, he
alleged that the Defendant reduced this transaction into writing in the form of
an undertaking which both parties signed and the same witnessed by one Kofi
Opoku, but the Defendant failed to pay by the due date. Hence, the instant
action.<o:p></o:p>In her statement of defence filed on
11/09/2012, the Defendant admitted executing the said undertaking to pay the
debt as stated by the Plaintiff in the presence of a witness but denied owing
the amount endorsed therein.<o:p></o:p>These averments were subsequently
denied by the Plaintiff in his reply filed on 27/09/2012. Having failed to
settle the matter at the pre-trial stage, the sole issue set down for trial is
whether or not the Defendant is indebted to the Plaintiff in the sum of GH¢24,
207.00? This amount must now read GH¢24, 307.00 due to the amount endorsed on
the Plaintiff’s amended writ of summons.<o:p></o:p>At the trial, the Plaintiff
testified that in May 2008, the Defendant was importing rods from China. She
approached him for financial assistance to augment her money whereupon the
Plaintiff gave her GH¢15,000.00. When the goods arrived, the Plaintiff said he
took delivery of part of the consignment and sold the same. After the parties
had gone into accounts, the Plaintiff testified that the Defendant owed him an
amount of GH¢11, 115.00. Continuing, the Plaintiff said he told the Defendant
that since both of them took a loan from Stanbic Bank at an interest rate of
29.5% that will be calculated and added to the balance of GH¢11,115.00.
According to him, the Defendant agreed that a document be prepared to that
effect. At that time, the Defendant informed the Plaintiff that her mother was
unwell so it was the Plaintiff who caused the document, exhibit A, to be
prepared. Concluding, the Plaintiff said he made a demand on the Defendant to
pay the amount endorsed in exhibit A but she refused to pay. <o:p></o:p><o:p>&nbsp;</o:p>Whilst testifying before this court,
the Defendant admitted that the Plaintiff advanced money to her to import
electrodes or rods from China and that part of this amount was a bank loan. In
all, the Defendant said she received an amount of GH¢ 25,000.00 from the
Plaintiff. When the consignment arrived, the Plaintiff took delivery of goods worth
GH¢ 13, 850.00 leaving a balance of GH¢11, 150.00 Following her inability to
repay this amount which the Plaintiff also took from the Bank, the Defendant
said the Plaintiff caused her to sign Exhibit A. Prior to the preparation and
signing of exhibit A, the Defendant said she pleaded with the Plaintiff that
her mother was unwell and that she should be given time but the Plaintiff
refused. According to her, even though she signed exhibit A, her indebtedness
to the Plaintiff is lesser than the amount endorsed therein. In cross
examination, the Defendant admitted that the Plaintiff used her title documents
to secure the loan at the bank and gave her part of the loan amount.<o:p></o:p><o:p>&nbsp;</o:p>Both parties did not call witnesses
and part of their evidence fell outside their pleadings. Since no objections
were raised and the matters testified about are relevant, the court is enjoined
to consider the same. Counsel for the plaintiff waived his right to address the
court. <o:p></o:p><o:p>&nbsp;</o:p>In order to effectively resolve the
issue before this court, I need to first, determine whether or not the
“undertaking” which the Plaintiff has based his claims on is a promissory note.
And, if so, whether or not it is valid such that the Plaintiff can rely on it
for the amount of money claimed from the Defendant. This document was pleaded
in paragraph 7 of the Plaintiff’s amended statement of claim. In raising this
preliminary question, the case of Board of Directors of Orthodox secondary
school of Peki v Tawlma-Abels (1974) 1 GLR 419 has been considered. In that
case, the Plaintiffs attached a document to their writ of summons which read as
follows:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; “I
accept responsibility for the deficit of NC 3</main>