THIRD LEVEL COMPANY LIMITED vs. DOUGLAS YAW ANTWI & ANOR [2014]DLHC3902

Date	2014-11-25
Suit No.	SUIT NO.RPC/67/14
Citation No.	[2014]DLHC3902

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

EWURAA ESI OTCHERE BAAFI FOR ASANTE KROBEA FOR PLAINTIFF.

PATRICK ASANTE NNURO FOR DEFENDANTS.

[2014]DLHC3902
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													<main id="main" class="content" style="min-height: 60rem" >THIRD LEVEL COMPANY
LIMITED<o:p></o:p>vs.<o:p></o:p>DOUGLAS YAW ANTWI
&amp; ANOR<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/67/14&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 25TH NOVEMBER, 2014<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>EWURAA ESI OTCHERE BAAFI FOR ASANTE
KROBEA FOR 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">

PATRICK
ASANTE NNURO FOR DEFENDANTS.<o:p></o:p>

</div>CORAM:<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>This
suit was commenced by the Plaintiff by a writ of summons and statement of claim
filed on 02/12/2013, perhaps, one of the oldest cases pending before this
court. Indeed, the Defendants amended their statement of defence thrice in the
course of the trial and sought so many adjournments on various grounds. But for
the attitude and conduct of the Defendant s towards this trial, the curtain
would have been brought down much earlier! <o:p></o:p>These
are the reliefs sought by the Plaintiff in its amended statement of claim filed
on 02/02/2015:<o:p></o:p>a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Recovery
of the sum of Ninety Thousand, Nine Hundred and One Ghana Cedis ( GH¢ 90,
901.42) being monies owed the Plaintiff which the 1st Defendant as
the employee of the Plaintiff has failed to account for and which the 2nd
Defendant has at all times been the Guarantor of the 1st Defendant
with the Plaintiff.<o:p></o:p>b)&nbsp;&nbsp;&nbsp;&nbsp; Interest
on the said amount from 1st October, 2013 at the prevailing bank
rate till the time of final and full payment.<o:p></o:p>THE PLAINTIFF'S CASE<o:p></o:p>The
Plaintiff described itself as a Limited Liability Company registered as a
Guinness distributor at Ahwiaa, Kumasi, and the 1st Defendant as its
employee, a salesman, to be specific. The Plaintiff alleged that due to
declining sales, it agreed to sell products to its cherished customers on
credit basis instead of the usual cash sales. As a rule, all salesmen were
instructed to collect the total indebtedness of every customer before selling more
products to them at any given time. At a point in time, it came to the
attention of the Plaintiff's General Manager that the 1st Defendant
had not accounted for a lot of the products that were given to him to sell and
he was queried. The 1st Defendant is said to have admitted that
customers who had purchased goods on credit had not paid for the same. He was
therefore&nbsp; tasked to recover all
outstanding sums before he would be allowed to sell more products; he then
presented cheques from some customers which were dishonoured by the bank.
Thereafter, the plaintiff alleged that its General Manager accompanied the 1st
&nbsp;Defendant to the alleged defaulting
customers&nbsp; but they indicated that they
had paid for all their products to the hearing of the 1st &nbsp;Defendant.&nbsp;
It is the Plaintiff's case that the 1st Defendant owes the
company the sum of GH¢ 90, 901.42, and the 2nd Defendant who stood
as his guarantor has been duly informed. <o:p></o:p>THE CASE OF THE 1ST DEFENDANT.<o:p></o:p>The
1st &nbsp;Defendant&nbsp; in his further amended statement of defence
filed on 17/06/15 admitted paragraph (2) of the plaintiff's amended statement
of claim which is to the effect that the 1st &nbsp;Defendant is an employee of the Plaintiff.
However, he denied that the Plaintiff gave him an appointment letter and so
there is no&nbsp; formal contract of
employment between the parties. He alleged that the Plaintiff merely engaged
him to assist in the sale of its products&nbsp;
along the Effiduase/Asokore Road but was never paid a salary. He
conceded that it is the company's mandatory policy that salesmen are to account
for their sales on daily basis but stressed that on the instructions of the
plaintiff, some goods were sold on credit. After assisting the plaintiff for
over two years, the 1st &nbsp;Defendant
asserted that the plaintiff compelled him to obtain a guarantor and insisted on
the same when the alleged indebtedness started accruing. Somewhere along the
line, the 2nd &nbsp;Defendant who
had stood as a guarantor approached the Plaintiff's manager in the company of
one Anna Dufie&nbsp; and allegedly intimated
to him that she wanted to withdraw her guarantorship; he agreed and promised to
delete her name from thei</main>