2000 LIMITED vs. FRANCIS OTOO [2015]DLCA4395

Date	2015-12-15
Suit No.	CIVIL APPEAL NO: H1/118/2013
Citation No.	[2015]DLCA4395

P. K. GYAESAYOR JA (PRESIDING)

I. LARBI (MRS.) JA

M. M. AGYEMANG (MRS.) JA

SAMUEL ADU BOAHENE FOR APPELLANT.

KWASI AGYENIM BOATENG FOR RESPONDENT WITH HIM MS CONSTANCE QUIST.

[2015]DLCA4395
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													<main id="main" class="content" style="min-height: 60rem" >2000 LIMITED<o:p></o:p>&nbsp;(PLAINTIFF/ APPELLANT)<o:p></o:p>&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; vs.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>FRANCIS OTOO<o:p></o:p>&nbsp;(DEFENDANT/RESPONDENT)<o:p></o:p><o:p>&nbsp;</o:p>[COURT OF APPEAL (CIVIL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO:&nbsp;
H1/118/2013&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 15TH DECEMBER, 2015<o:p></o:p>

</div>COUNSEL:<o:p></o:p>SAMUEL ADU BOAHENE FOR
APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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KWASI
AGYENIM BOATENG FOR RESPONDENT WITH HIM MS CONSTANCE QUIST.<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;
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P.
K. GYAESAYOR JA (PRESIDING), I. LARBI (MRS.) JA, M. M. AGYEMANG (MRS.) 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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JUDGMENT<o:p></o:p>

</div>M. M. AGYEMANG (MRS.)
JA:<o:p></o:p>In this appeal, the plaintiff/appellant (hereafter
referred to alternately as the plaintiff or the appellant) prays this court to
set aside the judgment of the High Court Fast Track Division, delivered on 24th
day of May 2014, dismissing the claim of the appellant and entering judgment
for the defendant/respondent (referred to hereafter alternately as the
defendant or the respondent) on his counterclaim.<o:p></o:p>The matters antecedent to the present appeal are as
follows: the appellant brought a suit at the court below alleging that it was
involved with the respondent in a business transaction out of which a debt of GHC
36, 812.00 owed to it, had arisen. The said transaction allegedly came about
when the parties entered into a contract on the 6th of September
2007; it was for the distribution by the respondent of the appellants goods.
The transaction which was said to be in the nature of a credit sale agreement,
required the respondent to pay for the goods within thirty days of supply by
the appellant. It was the case of the appellant that the respondent’s attempt
to defray the outstanding debt had resulted in his issuance of three cheques to
the appellant. The said cheques, with face value of GHC16,812; GHC 10,000 and
GHC 10,000 drawn on Ecobank Ridge Road Branch, Accra, were all dishonoured. <o:p></o:p>Thus did the appellant as plaintiff, commence an
action at the court below seeking alternative reliefs, being: a declaration
that the respondent was indebted to it in the said sum of GHC36,812.00; an
order for the said sum to be paid to it with interest at the prevailing bank
rate calculated from due date to the date of final payment, or in&nbsp; the alternative, that the respondent be made
to pay the face value of the dishonoured cheques with interest from the date of
dishonour until the date of payment.<o:p></o:p>The issue regarding the alleged outstanding debt
was joined when the respondent in his pleading as defendant, denied that the
parties had operated under the agreement of 6th September 2007. The
respondent who denied the existence of the debt claimed by the plaintiff
pleaded that he in fact had no contract with the plaintiff as the said contract
of 6thSeptember2007 had been frustrated due to his inability to
secure a shop for the sale of the plaintiff’s goods, an alleged condition
precedent to the operation of the agreement. <o:p></o:p>The respondent however claimed that he had had an
agreement prior to the 6th September agreement with one Majid, the
Managing Director of the appellant, in the latter’s personal capacity, and this
was with regard to the distribution of MTN phone cards. This agreement he alleged,
had produced a debt of GHC223,620.24. This, as well as an order for the
calculation and payment of commission due the respondent, were the subject of
his counterclaim. <o:p></o:p>At the close of pleadings, eight issues were set
out for the determination of the trial court. As was observed by the learned
trial judge, only two of the issues arising from the pleadings were gone into,
being: whether or not the defendant was indebted to the plaintiff, and whether
or not the plaintiff was indebted to the defendant on his counterclaim. <o:p></o:p>Before the trial commenced, the court, by the
agreement of the parties, made an order for the appointment by the Registrar of
a Court Expert to go into the respective accounts and submit a report to it. It
was implicit in the order that the report produced would assist the court to
determine the alleged indebtedness of the parties on the claim and
counterclaim. The said Court’s Expert, a</main>