RICHARD ANING vs. ATTA POKU [2012]DLHC3887

Date	2012-06-29
Suit No.	SUIT NO.RPC/159/10
Citation No.	[2012]DLHC3887

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

IBRAHIM ADAMS FOR THE PLAINTIFF.

WILLIAM KUSI FOR THE DEFENDANT

[2012]DLHC3887
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													<main id="main" class="content" style="min-height: 60rem" >RICHARD ANING<o:p></o:p>vs.<o:p></o:p>ATTA POKU<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;
padding:0in 0in 1.0pt 0in">

SUIT NO.RPC/159/10&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 29TH JUNE, 2012<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>IBRAHIM ADAMS FOR THE
PLAINTIFF.<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">

ANGELINA
MENSAH-HOMIAH (MRS.) JUSTICE
OF THE HIGH COURT<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;
padding:0in 0in 1.0pt 0in">

</div>The Plaintiff has described himself
as a businessman resident in Bekwai, Ashanti Region. He operates a business
under the name Abigi Photo Lab. The Defendant is also described as the Vice
Chairman of Bekwai GPRTU and an elder of the Pentecost Church who also resides
in Bekwai. The Plaintiff instituted this action against the Defendant for the
sum of GH¢10,500.00 representing monies the Defendant siphoned from his business
between the year 2005 and 2008. The Plaintiff is further claiming interest on
this amount from April 2005 till date of final judgment as well as a mobile
phone together with a line.<o:p></o:p><o:p>&nbsp;</o:p>The relevant facts as gleaned from
the Plaintiff’s 33-paragraphed amended statement of claim are these:&nbsp; The Defendant was employed by the Plaintiff
as the Manager of Abigi Photo Lab upon the recommendation of the Plaintiff’s
wife. The parties agreed on the remuneration for the Defendant after
negotiations. Afterwards, the Plaintiff left for Australia and put the
Defendant in charge of the business. Prior to his departure, the Plaintiff
purchased materials for the running of the business. Proceeds from the business
were to deposited in a designated account at the Agricultural Development Bank
(ADB) to which the Plaintiff was the sole signatory. A few months down the
line, the Plaintiff caused a financial audit to be conducted after which the
Defendant was specifically ordered not to handle cash. The Defendant allegedly
purchased materials on credit without making entries and accounting for the
same.&nbsp; As a result, the defendant managed
to rip off an amount of GH¢10,500, representing goods purportedly bought for
the business but which cannot be accounted for.&nbsp;
He also failed to properly hand over when he resigned from the company.
The alleged suppliers have laid claims to this sum of money against the
Plaintiff. A&nbsp; Nokia mobile phone with an
MTN line given to him by the Plaintiff for the running of the business was also
not returned. <o:p></o:p><o:p>&nbsp;</o:p>For the Defendant, these facts were
averred in denial of the Plaintiff’s allegations: The Plaintiff offered to pay
him GH¢180 per month and this enticed him to resign from his job as a store
keeper with the Amansie West Rural Bank. After the Plaintiff had engaged him,
he opened a personal account in which all proceeds from the business were
deposited.&nbsp; Whilst the Plaintiff was
abroad, the business could not access this account and had to contract loans to
fix damaged machines. Following various complaints to the Plaintiff against the
Defendant, he was asked to hand over all monetary matters to one Ben which he
did. When Ben left the business, Sarpong and later Wazigy took over the
management of all financial matters to the exclusion of the Defendant who was
only limited to record keeping. These people have since left the business.&nbsp; His monthly salary was also drastically
reduced. One year after the Defendant’s resignation from the Plaintiff’s business,
he reported him to the Buffalo Unit of Ghana Police Service. The Plaintiff
later instituted an action at the Asante Bekwai District Court claiming the sum
of GH¢500 and other reliefs. The Defendant alleged that the Plaintiff gifted
the Nokia mobile phone to him prior to the commencement of the business. <o:p></o:p><o:p>&nbsp;</o:p>The Defendant has thus
counterclaimed for general and specific damages against the Plaintiff for his
failure to pay him the agreed salaries.<o:p></o:p><o:p>&nbsp;</o:p>Three issues were set down for
trial. These are:<o:p></o:p><ol style="margin-top:0in" start="1" type="1">
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l4 level1 lfo1;
 tab-stops:list .5in">Whether
 or not the Defendant siphoned off an amount of GH¢10,500.00 belonging to
 the Plaintiff’s business?<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l4 level1 lfo1;
 tab-stops:list .5in">Whether
 or not the Defendant perpetrated fraud on the Plaintiff?<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l4 level1 lfo1;
 tab-stops:list .5in">Whether
 or not the Plaintiff is entitled to his claims.<o:p></o:p></li>
</ol><o:p>&nbsp;</o:p>As is always the rule in civil
matters, a party who makes any positive assertion, which is denied, bears the
onus of proof. The required standard of proof is by the preponderance of
probabilities as spelt out under sections 11(4) and 12 of the Evidence Act,
</main>