NAN ENTERPRISE LIMITED vs. MUBARAK ABUBAKAR [2015]DLHC3555

Date	2015-10-05
Suit No.	SUIT NO.RPC/224/14
Citation No.	[2015]DLHC3555

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

KWAKU YEBOAH APPIAH FOR PLAINTIFF.

DAVID P. AMEDIOR FOR DEFENDANT.

[2015]DLHC3555
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													<main id="main" class="content" style="min-height: 60rem" >NAN ENTERPRISE LIMITED<o:p></o:p>vs.<o:p></o:p>MUBARAK ABUBAKAR<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/224/14&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 5TH OCTOBER, 2015<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>KWAKU YEBOAH APPIAH 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">

DAVID
P. AMEDIOR FOR DEFENDANT.<o:p></o:p>

HER
LADYSHIP 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;
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</div>By
a writ of summons filed on 02/06/2014, the Plaintiff Company claimed the
recovery of various amounts of money totaling GH¢76, 911.00 being the unpaid
balances of goods supplied to the Defendant&nbsp;
which he ought to have paid off by&nbsp;
agreed dates in September and November, 2013 but has refused to do so.
The Plaintiff also claimed interest on the amount owed.<o:p></o:p>The
Plaintiff described itself as carrying on business as General Merchant whereas
the Defendant is a businessman. On 09/09/2013, the Plaintiff averred that
assorted food items totaling GH¢13,155.00 were supplied to the Defendant at his
request. Again, on 29/10/2013 and 01/11/2013, various food items totaling GH¢4,806.00
and GH¢75,155.00 respectively were supplied to the Defendant. The Plaintiff
also alleged that another supply of cooking oil worth GH¢3000 was made to the
Defendant on 05/11/2013. However, goods worth GH¢ 6,050.00 which the Plaintiff
was unable to supply were deducted from his indebtedness. For all these
supplies, it is the Plaintiff's case that full payment was to be effected
within 10 days from the date of transaction but the Defendant has demonstrated
by his conduct that he will not pay the sum claimed.<o:p></o:p>The
assertions on indebtedness were met with an outright denial by the
Defendant.&nbsp; Although he admitted receipt
of various goods worth GH¢75,155.00; GH¢13,155.00 ; GH¢ 3,000.00&nbsp; and credit notes worth GH¢ 6,050.00, his
version of the events is that he made full payment on or about November, 2013
and he is therefore not indebted to the Plaintiff. In another breath, he
averred that the Plaintiff has turned down his request to be furnished with his
actual indebtedness and that there is the need for accounts to be gone into for
the determination of his actual indebtedness.<o:p></o:p>This
court has been invited to determine the sole question of whether or not the
Defendant owes the amount claimed by the Plaintiff. This being a civil suit,
the Plaintiff who has made a debt allegation against the Defendant bears the
onus of proof as required by law. In discharging this burden, the Plaintiff is
required to introduce evidence that will make its case more probable than not.
The legal basis for the degree and standard of proof are sections 11(4) and 12
of the Evidence Act 1975, NRCD 323. There are a host of judicial authorities on
the nature of proof required in civil suits and indeed, both counsel made
reference to a couple of such cases in their written submissions.&nbsp; These include the 1959 case of Majolagbi&nbsp; v Larbi ; Zambrama v Segbedzi (1991) 2 GLR
221 CA; Adwubeng
v Domfeh (1996-97) SCGLR 660;&nbsp; Takoradi Flour Mills v Samir Faris
(2005-2006) SCGLR 883; Yaa Kwesi v Arhin Davis (
2007-2008) SCGLR 580; and Continental Plastics v IMC
Industries- Technik GMBH (2009) SCGLR 298 at 307.&nbsp; I need not be labour this point.<o:p></o:p>In
discharging the burden placed on it by law, a credit officer by name Samuel
Evans Nyarko testified on its behalf.&nbsp; He
indicated that the Defendant has a 10-day credit sales arrangement with the
Plaintiff Company whereby mercantile food products sold to him are to be fully
paid within a minimum period of ten days.&nbsp;
Explaining the nature of their transactions, Nyarko said all purchases
are keyed in on account of the Defendant, an invoice is then raised and a copy
printed out for the Defendant. He tendered in evidence a statement of account
of the Defendant as exhibit A. He gave details of the entries in exhibit A thus:
(i) the Defendant had an opening (debit) balance of GH¢66,456. 83 in respect of
goods earlier supplied to him; on 09/09/2013, goods worth GH¢13,155.00 were
supplied to him but on 29/09/09 credit notes of GH¢770.00 and GH¢535.00 were
given to him; goods worth GH¢3000 were supplied to him on 5/11/2013.&nbsp; He paid GHs 3,500.00 and GH¢ 70,000.00
respectively on 03/09/2013 and 29/10/2014 respectively. The Plaintiff's
representative denied the Defendant's assertions that he does not owe the
Plaintiff Company and stressed that the Defendant is indebted to the Plaintiff
in the sum of GH¢76,911.84.&nbsp; <o:p></o:p>Counsel
for the Defendant in cross-examination sought to attack the opening balance on
exhibit A on the basis that the figure does not refer to goods supplied. To
these line of questioning, the Plaintiff's representative emphasized that the
opening balance was in respect</main>