KEYAUN MACHINERY LTD. vs. CAO YANG LING AND ASU BENEDICTION VENTURES [2016]DLHC11579

Date	2016-06-16
Suit No.	CM/0013/2015
Citation No.	[2016]DLHC11579

HER LADYSHIP JUSTICE AKUA SARPOMAA AMOAH (MRS.)

JOHN KUMAH FOR THE PLAINTIFF PRESENT

NO LEGAL REPRESENTATION FOR THE DEFENDANTS

[2016]DLHC11579
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													<main id="main" class="content" style="min-height: 60rem" >KEYAUN MACHINERY LTD.<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>CAO YANG LING AND ASU BENEDICTION VENTURES<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH
COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

CM/0013/2015&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATA: 16TH JUNE 2016<o:p></o:p>

</div>COUNSEL&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;<o:p></o:p>JOHN KUMAH FOR THE PLAINTIFF PRESENT<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormal" style="text-align:justify;text-justify:inter-ideograph;
tab-stops:9.0pt 42.55pt center 236.25pt;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">NO LEGAL REPRESENTATION FOR THE
DEFENDANTS<o:p></o:p>

</div>CORAM:<o:p></o:p>HER LADYSHIP JUSTICE AKUA SARPOMAA
AMOAH (MRS.)<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGEMENT<o:p></o:p>

</div>&nbsp;The Plaintiff
is a Limited Liability Company registered under the Laws of Ghana and avers
that its core objectives are trading, mining, real estate, machinery and
mining. The 1st Defendant is described as a former employee of 1st
Plaintiff and the 2nd Defendant as “a company being used by the 1st
Defendant to exploit the Plaintiff and divert resources of the Plaintiff.” &nbsp;It is unclear from the pleadings, what &nbsp;&nbsp;2nd
Defendant’s corporate structure is, but I shall address the said issue later on
in this judgment if that becomes necessary. <o:p></o:p>The Plaintiff’s
case is that the 1st Defendant was initially engaged as a clerk at
its Anwia Nkwanta branch office but was later promoted to the position of shops
Manager in charge of Plaintiff’s stores in Kumasi. &nbsp;According to Plaintiff, sometime in January, 2015,
it noticed the unusual absence of the 1st Defendant from duty. &nbsp;The 1st Defendant continued to
“behave strangely” in spite of the several warnings issued her by
Plaintiff.&nbsp;&nbsp; The Plaintiff therefore set
up a monitoring team which upon investigation discovered that the 1st
Defendant had since April 2015, hatched a plan to fraudulently divert resources
and materials of her employers, the Plaintiff Company, to set up a rival
company to compete with the Plaintiff’s business. &nbsp;The Plaintiff avers that an internal audit of
the accounts of 1st Defendant at the Kumasi store revealed that the
1st Defendant had taken advantage of her position to obtain
illegitimate income and had between the months of May and July 2015,
“fraudulently” remitted to China about Sixty-Five Thousand Ghana Cedis (GH¢65,
000.00) without the Plaintiff’s knowledge. <o:p></o:p>Plaintiff
contends that it came to the inescapable conclusion that these monies were
stolen from its coffers since the 1st Defendant could not have
raised the said amount legitimately in Ghana as her salaries are paid directly
into her accounts in China. &nbsp;Plaintiff
charged that, the 1st Defendant conduct constituted “fraudulent
breach of trust and an abuse of her position in the company”.<o:p></o:p>The particulars
of fraud as alleged were given as follows:<o:p></o:p>&nbsp;A.<span style="font-style: normal; font-variant-numeric: normal; font-variant-east-asian: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: &quot;Times New Roman&quot;;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
As
the manager of the Kumasi stores the 1st Defendant opened a secret
store where she diverted goods and customers from the Plaintiff’s shops and
sold them (SIC} for her personal benefits.<o:p></o:p>&nbsp;b.
The 1st Defendant formed the 2nd Defendant with the
support of one Israel Asubonteng with the purposes of exploiting the Plaintiff
and using the Plaintiff’s resources and funds to order same goods from China
for themselves.<o:p></o:p>&nbsp;c.
Between May and July 2015, about Sixty-Five Thousand Ghana Cedis (GH¢65,
000.00) of sales belonging to the Plaintiff were not accounted for.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>&nbsp;The writ which
was issued on the 26th of October 2015 was duly served on the 1st
and &nbsp;2nd Defendants, the same
day i.e on the 26th of October , 2015&nbsp; but they failed to enter appearance to the
writ or to file a defence within the
time frame stipulated by the rules. This Court therefore upon application by Plaintiff
proceeded to hear Plaintiff’s evidence in accordance with Order 13(6) (1)&amp;(2) of the
High Court&nbsp; (Civil Procedure)Rules, CI 47.
&nbsp;&nbsp;<o:p></o:p>Wang Zheng, Plaintiff’s
Managing Director testified on behalf of Plaintiff. He stated that &nbsp;&nbsp;the 1st
Defendant is a former employee of Plaintiff who served as manager of one of the
Plaintiff’s shops at Anwia Nkwanta in Kumasi. He further described
the 2nd Defen</main>