NAN-TEL SYSTEMS LIMITED vs. KELVIN ATSU WILSON [2018]DLHC3742

Date	2018-03-26
Suit No.	SUIT NO. RPC/12/17
Citation No.	[2018]DLHC3742

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

KWAKU YEBOAH APPIAH FOR PLAINTIFF

ISAAC BARNABAS K. DZASA FOR DEFENDANT

[2018]DLHC3742
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1"></a><a name="OLE_LINK11"></a><a name="OLE_LINK12">NAN-TEL
SYSTEMS LIMITED<o:p></o:p></a>vs.<o:p></o:p>KELVIN ATSU WILSON<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;
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SUIT NO. RPC/12/17&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 26TH MARCH, 2018<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;
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ISAAC BARNABAS K. DZASA
FOR DEFENDANT<o:p></o:p>

ANGELINA MENSAH-HOMIAH
(MRS.) JUSTICE OF THE HIGH COURT<o:p></o:p>

JUDGMENT<o:p></o:p>

</div>In
this suit, the Plaintiff Company seeks to recover from the Defendant the sum of
GHC 126, 740.00 and interest thereon, as well as damages for breach of
contract.&nbsp; The Defendant has also
counterclaimed for breach of contract and recovery of monies allegedly due him.<o:p></o:p>It
is the case of the Plaintiff that on 24/03/2016, the Defendant purchased Vodafone
Top-Up cards worth GHC 149.145.00 from its Kumasi office on credit, payable
within seven (7) days. The Defendant was unable to pay the said amount and
subsequently gave an undertaking&nbsp;&nbsp; to
settle his indebtedness. The Plaintiff further averred that the Defendant even
issued cheques from one of his companies, CHAFAL COMPANY LIMITED for the
purpose of paying off his debt but those cheques were returned. So far, the Plaintiff
alleged that the defendant has paid GHC 22,405.00 leaving a balance of GHC 126, 740.00.00.<o:p></o:p>In
his statement of defence, the Defendant averred that the transactions were
between the Plaintiff and Chafal Company Limited, a duly registered Limited
Liability Company, whose line of business includes sales, marketing and
redistribution of telecommunication&nbsp;&nbsp;
networks credit card packages in the Greater Accra Region. He contended
that their business relationship amounted to a Regional Jurisdictional Breach
of the Plaintiff’s Agreement with Vodafone Ghana, and so the same was to be
concealed from Vodafone Ghana.&nbsp; As part
of the agreement between the parties, the Defendant contended that he was
entitled to a hold-back margin of 0.5% of sales, and as 1st December,
2015, the amount due him as “hold-back”
margin stood at GHC 21,104.00, and it was agreed that it should be used in
clearing some of his debts. With regards to the “Undertaking”, the Defendant averred
that the Plaintiff gave the same to him to sign when no reconciliation had been
done, and that the Plaintiff promised him of continuous supply of stocks so as
to clear his outstanding debt if he signed the document. Yet, the Plaintiff violated
the agreement by failing to make further supplies to him. Prior to that, the Defendant
claimed shortages were recorded at various times between stocks consigned and
actual stocks received, so the business started accumulating debts, and the
same was communicated to the Plaintiff. The Defendant admitted making a payment
of GHC 22,405.00 and went on to plead that the directors of Chafal Company
Limited said he could not bind them by the agreement unilaterally signed at the
Plaintiff’s office in April, 2016. As regards the cheques, the Defendant alleged
that it was the Plaintiff who advised him to issue those post -dated cheques
for the easy clearing of the outstanding debt, but the Plaintiff was not to
present the cheques until accounts had been gone into. The Defendant counterclaimed
for his alleged unpaid holdback margin in the sum of GHC 21,104.40; another
payment of GHC 71, 451.50 and damages for breach of contract.<o:p></o:p>By
way of Reply, the Plaintiff&nbsp;&nbsp; asserted
that the trade arrangement with the Defendant was known to Vodafone Ghana, and
because the Defendant crossed the Plaintiff’s territory assigned to it by
Vodafone Ghana, it gave an upfront discount of 8.5% to the Defendant on all
goods supplied. As regards the shortages, the Plaintiff stated that shortages
worth GHC 10,740.00 was reported to it by the Defendant, at the time of the
‘undertaking’, and that amount was deducted from the Defendant’s indebtedness
of GHC 143,388.00. Thus, the Defendant is not entitled to his counterclaim.<o:p></o:p>ISSUES FOR TRIAL<o:p></o:p>After
an abortive pre-trial settlement conference, the issues below were set down for
trial:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Whether or not the arrangement between the
parties was for the Plaintiff to supply the items to the defendant on credit
for the Defendant to pay for them within 7 days after supply?<o:p></o:p>