MADAM SELINA vs. AGYEMAN DUAH AND ABENA FRIMPOMAA [2015]DLCA3143

Date	2015-12-22
Suit No.	CIVIL APPEAL NO. H1/13/2016
Citation No.	[2015]DLCA3143

AYEBI J.A. (PRESIDING)

TORKORNOO (MRS) J. A.

DOMAKYAAREH (MRS) J. A.

OSEI KOFI FOR DEFENDANT/APPELLANT

WILLIAM KUSI FOR PL/AINTIFF/RESPONDENT

[2015]DLCA3143
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MADAM SELINA

&nbsp;[COURT OF APPEAL, KUMASI]

CIVIL
APPEAL NO. H1/13/2016&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&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: 22ND DECEMBER, 2015

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COUNSEL:&nbsp;&nbsp;

OSEI
KOFI FOR DEFENDANT/APPELLANT

WILLIAM KUSI FOR PL/AINTIFF/RESPONDENT

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&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;

JUDGEMENT

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TORKORNOO (MRS) , J. A:

The undisputed facts of this case are
that the Appellant supplied goods on credit to the Respondent to sell in Mali.
The Appellant at that time was in an amorous relationship with a gentleman
called Agyeman Duah. Agyeman Duah was the 1st Defendant in this suit
when it was commenced by the Respondent in the circuit court, Kumasi as suit
number A2/152/2011.

The agreed facts are that, the said
Agyeman Duah, presenting himself as an emissary of the Appellant, went to the Respondent
in Mali and collected goods amounting to 1million CFA from the Respondent. He
claimed that the goods had been sold for 900,000 CFA and the Respondent had to
add another 100,000 CFA to make up the full value of the goods she had
received. Respondent paid this extra 100,000 CFA. Thereafter, the Appellant
demanded her money for the goods supplied and refused to be satisfied with the explanation
that goods amounting to 1 million CFA had been collected by Agyeman Duah as her
messenger.

When the Respondent failed to satisfy Appellant’s
demands, the Appellant sued the Respondent in the Circuit Court, Kumasi for the
1 million CFA. This was suit number A2/80/2010. At the trial, the Respondent
called the said Agyeman Duah as her witness in proof of her position that the Appellant’s
goods had been given to Appellant through Agyeman Duah. That case was suit
number A2/80/2010 and it was heard by His Honour Adjei Frimpong (as he then
was). H/H Agyei Frimpong held that the relationship between the Appellant and Respondent
was contractual, and that it is a fundamental obligation of a purchaser of
goods to pay for them when delivered.

He rejected the testimony of the Respondent
and Agyemang Duah that he had gone for the Appellant’s goods from Respondent on
the ‘mandate’ and ‘instructions’ of the Appellant.&nbsp; In his judgment, he said that he ‘did not find (Agyeman Duah’s) evidence
reliable’. He ‘did not believe’
him. He said ‘I also do not find
sufficient evidence to show that the goods were actually seized and sold.&nbsp; Assuming they were, it was not established
that he acted on the instructions of the (Respondent)’. (emphasis
mine).

He entered judgment for the 1 million
CFA in favour of the Appellant and against the Respondent. The Respondent did
not appeal this judgment. Her response was to commence this action appealed
against as suit number A2/152/11 against Agyeman Duah for the following claims:

CLAIM

1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Two
thousand, Seven Hundred and Fifty Ghana cedis (GH¢2,750.00) or its CFA
equivalent of One million CFA (1m CFA) being cost of plastic bowls which the Defendant
collected from Plaintiff for sale and the cost involved be sent its owner –
Madam Abena Frimpomaah but Defendant after the sale failed to pay the money to
the said Frimpomaah. Madam Frimpomaah therefore sued her (Plaintiff) to recover
the 1,000,000.00 CFA from her.

&nbsp;

2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
One
thousand Two Hundred and Thirty-Seven Ghana cedis (GH¢1,237.00) being interest
on the 1,000,000.00 CFA awarded to the said Madam Frimpomaah by this Honourable
Court.

3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Six
Hundred and five Ghana cedis (GH¢605.00) being cost on the amount (Judgment
debt) awarded to Madam Frimpomaah including other expenses. Plaintiff therefore
sues the Defendant to recover the above amount from Defendant.