2000 LIMITED vs. FRANCIS OTOO [2015]DLCA7990

Date	2015-01-15
Suit No.	CIVIL APPEAL NO. H1/113/2014
Citation No.	[2015]DLCA7990

KUSI APPIAH JA (PRESIDING)

ADUAMA OSEI JA

WELBOURNE (MRS.) JA

MRS. RENEE OWUSU ANSAH FOE FOR APPELLANT

MRS. CONSTANCE QUIST FOR RESPONDENT

[2015]DLCA7990
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													<main id="main" class="content" style="min-height: 60rem" >2000
LIMITED<o:p></o:p>(PLAINTIFF/
APPELLANT)<o:p></o:p>vs.<o:p></o:p>FRANCIS OTOO<o:p></o:p>(DEFENDANT/ RESPONDANT)<o:p></o:p><o:p>&nbsp;</o:p>[ COURT OF APPEAL, 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. H1/113/2014&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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 JANUARY, 2015<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MRS. RENEE OWUSU ANSAH FOE 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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MRS. CONSTANCE QUIST
FOR RESPONDENT<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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KUSI APPIAH JA
(PRESIDING), ADUAMA OSEI JA, WELBOURNE (MRS.) JA<o:p></o:p>

</div>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></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>ADUAMA OSEI<o:p></o:p>By
a Notice of Appeal filed on the 29th of May, 2013, the
Plaintiff/Appellant is praying this Court to set aside a “judgment” read in the Fast Track Division of the High Court on the
24th of May, 2013. The sole ground disclosed on the Notice of Appeal
is that “the whole judgment is against
the weight of evidence.” <o:p></o:p><o:p>&nbsp;</o:p>I
have read the Record of Appeal a number of times and I have been wondering
whether, considering the state of the record and the relief sought in this
appeal, the Plaintiff/Appellant is not inviting this Court to engage in a
purposeless judicial exercise.&nbsp; <o:p></o:p><o:p>&nbsp;</o:p>In
this judgment, the Plaintiff/Appellant will be referred to as “the Plaintiff” and the Defendant/Respondent will be referred to as “the Defendant.”<o:p></o:p><o:p>&nbsp;</o:p>In
its action commenced in the Fast Track Division of the High Court, Accra, on
the 29th of January, 2008, the Plaintiff sought a declaration that
the Defendant was indebted to it in the sum of GH¢36,812.00. It also sought in
its favour an order against the Defendant for the payment of the said sum
together with interest from 18th January, 2008, until date of final
payment. As an alternative to the claims as stated above, the Plaintiff sought
from the trial Court a declaration that “as
drawer of the cheques numbered 000056, 000057 and 000058 defendant is liable to
pay plaintiff the full value of the
cheques upon dishonour”, and an order against the Defendant in its favour
for the payment of the sum of GH¢36,812.00, being the full value of those
cheques, with interest thereon from 21st January, 2008 to date of
final payment.<o:p></o:p><o:p>&nbsp;</o:p>In
the statement of claim that accompanied its writ of summons, the Plaintiff
alleged that the Defendant was a distributor of its goods under an agreement
dated 6th September, 2007, by which the Defendant was to pay the
Plaintiff for all goods supplied to him not later than 30 days from the date on
which the goods were supplied, unless the Plaintiff extended the period in
writing for such period as it thought fit. In pursuance of the said agreement,
the Plaintiff had, as at 18th December, 2007, supplied the Defendant
with various quantities of phone cards valued at GH¢224,042.90, in respect of which
the Defendant had made a partial payment, leaving an outstanding balance of
GH¢36,812.00. The Plaintiff alleged that to discharge his indebtedness to it,
the Defendant had issued 3 cheques drawn on the Ring Road branch of Ecobank
numbered 000056, 000057 and 000058 for the respective sums of GH¢16,812.00,
GH¢10,000.00 and GH¢10,000.00. The said cheques had however been dishonoured
upon presentment and, though the Defendant had been duly notified about the
dishonour of the cheques, he had refused or neglected to pay the said cheques
according to their tenor.<o:p></o:p><o:p>&nbsp;</o:p>The
Defendant however rejected the Plaintiff’s claims and alleged in his statement
of defence that the agreement of 26th September, 2007 on which the
Plaintiff based the claims had been frustrated and that, in the result, he had
not dealt with the Plaintiff as a distributor of its goods. The Defendant
stated however that there had been an arrangement between him and one Abdel
Majid El-Jamal, who was a director of the Plaintiff company, under which El-Jamal
supplied him with Areeba (now MTN) products for sale at a profit and a monthly
commission of 1% of total sales. According to the Defendant, he had given a
signed blank cheque book to El-Jamal and payments for the MTN products El-Jamal
supplied to him were effected either in cash or by El-Jamal inserting the value
of the products supplied in a leaf from the signed blank cheque book and
cashing same. The Defendant alleged that, though midway through the
arrangement, he had called on El-Jamal for &nbsp;reconciliation of their accounts, El-Jamal had
ignored the requests and he had&nbsp;
discovered subsequently that El-Jamal had completed and presented 4
cheques totaling GH¢223,620.24 as payment for products he had not supplied. The
Defendant stated that upon that discovery, he had demanded from El-Jamal the
return of the signed cheque book and had also instructed his bankers not to
honour any future cheques from El-Jamal without reference to him. Based on the
above allegations, the Defendant, by his amended statement of defence and
counterclaim, claimed </main>