Ibrahim v Sprint Network Limited and Another (CM/RPC/0165/2019) [2025] GHAHC 106 (25 July 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION, HELD IN ACCRA ON FRIDAY THE 25TH DAY OF JULY, 2025 BEFORE HER LADYSHIP JUSTICE YAA ONYAMEYE GYAKOBO JUSTICE OF THE COURT OF APPEAL SITTING AS AN ADDITIONAL HIGH COURT JUDGE SUIT NO.CM/RPC/0165/2019 ABUBAKARI IBRAHIM - PLAINTIFF VRS 1. SPRINT NETWORK LIMITED - DEFENDANTS 2. ADEBOYEJO KABIR GBADEMU --------------------------------------------------------------------------------------------------------- JUDGMENT ----------------------------------------------------------------------------------------------------------- I. INTRODUCTION 1. The genesis of the instant suit is uncomplicated. It hinges on the desire of fourteen individuals to fulfil a religious duty. By an amended writ of summons filed on 20th November 2020, the Plaintiff claimed the following reliefs against the Defendants: (a) Recovery of GHS170,200.00 being the outstanding amount paid to Defendants upon a guarantee by the 2nd Defendant to facilitate fourteen passengers’ travel to Saudi Arabia to perform the 2018 pilgrimage (Hajj) which Defendants failed to accomplish; 1 | P age (b) Interest on the said sum of GHS170,200.00 from 1st August 2018 to date of final judgment; (c) Recovery of GHS2,200.00 being money Defendants collected from Plaintiff under the pretext of paying the fare for a passenger to be flown to Nigeria which did not materialise as well as payment for airport expenses which turned out to be false; (d) General damages for breach of contract; (e) Costs; and (f) Any other reliefs the Court may deem meet. II. PLAINTIFF’S CASE 2. The Plaintiff averred that he is a Hajj agent doing business under the name and style of Insha Allah Hajj Travel and Tours resident in Tamale, and the 1st Defendant is a registered company engaged in organising pilgrims to undertake annual pilgrimage, commonly known as Hajj, to Mecca while the 2nd Defendant is its Chief Executive Officer. He also averred that the 2nd Defendant is a director, secretary and majority shareholder of 1st Defendant and therefore its alter ego. 3. Plaintiff averred that sometime in 2018 he received money from fourteen prospective pilgrims who wanted to undertake the 2018 Hajj but at the time the Hajj Board, which was in charge of Hajj pilgrimages in Ghana had closed its accounts thus the fourteen pilgrims could not undertake the pilgrimage under the auspices of the Hajj Board. He also averred that the 1st Defendant organises its operations independent of the Hajj Board and ferries passengers via Egypt Air Line from Accra to Medina in Saudi Arabia thus his passengers 2 | P age were not affected by the Hajj Board’s activities. Consequently, he approached the 2nd Defendant to inquire if he could airlift the prospective pilgrims and he agreed and demanded the sum of GHS18,000.00 per passenger which was subsequently reduced to GHS17,000.00. He also averred that the fee included airfare from Ghana to Nigeria where the pilgrims were to be airlifted to Mecca in Saudi Arabia after the Defendants had secured visas for the prospective pilgrims. 4. The Plaintiff pleaded that the 2nd Defendant provided him with bank account details of the 1st Defendant to enable him deposit the fee into the account thus he subsequently issued two Unibank Ghana Limited cheques in the sums of GHS187,000.00 and GHS53,200.00 on 28th July 2018 and 30th July 2018 respectively which 2nd Defendant cashed. 5. Plaintiff further pleaded that the prospective pilgrims were transported to Nigeria for visas in two batches of eleven and three and the Defendants demanded GHS1,500.00 to pay for the airfare of one of the pilgrims who missed the flight. He pleaded that the Defendants demanded for the sum of GHS700.00 for airport expenses as well which he paid. 6. Plaintiff averred that the Defendants could not obtain the visas for the fourteen passengers contrary to his undertaking to do so thus the pilgrims could not undertake the Hajj. He pleaded that he consequently demanded a refund of the monies paid but the 1st Defendant has failed to refund the money in spite of repeated demands. 7. He also averred that the Defendants subsequently refunded the sum of GHS70,000.00 after the 2nd Defendant was arrested by the Police hence presently the sum of GHS170,200.00 plus GHS1,500.00 paid for the passenger 3 | P age who missed the flight and GHS700.00 representing airport expenses are outstanding. He further averred that 2nd Defendant personally guaranteed to refund the money if the pilgrims were unable to undertake the pilgrimage. He finally pleaded that the Defendants would not refund the money unless ordered by this court to do so and claimed against the Defendants jointly and severally the reliefs set out above. III. DEFENDANTS’ CASE 8. From the record the Statement of Defence was filed by the Defendants on 28th July 2020. The Plaintiff filed an Amended Writ of Summons and Statement of Claim on 20th November 2020, and one would have expected the Defendants to have consequently amended their Defence. However, the records do not show that they did. In effect they intend to rely on the Statement of Defence filed on 28th July 2020, by which they averred that the Defendants applied for visas for the prospective pilgrims in Nigeria, but because of the limit in the number of passports the Saudi Arabia Embassy could accommodate from their agent in Nigeria, the agent could procure the visas. 9. The Defendants also averred that the 2nd Defendant travelled to Nigeria and distributed the passports to other agents and paid the fee for the visa to one Ibrahim Bello and that the reason why the visas could not be secured was due to the fact that the Plaintiff submitted the passports of the would-be pilgrims late, contrary to the schedule he was given. 10. The Defendants further averred that they arranged for and secured tickets for all the prospective pilgrims and paid for tickets from EgyptAir Line which were issued on 20th August 2018, for the following: Dawuni Ayishetu, Bambisi Yusufi, Abubakar Sakaria, Adam Huyeifatu, Napora Yakubu, 4 | P age Umaru Ahmadu and Seidu Adama. They also averred that they paid for the visa processing fees for all the pilgrims but the agents they contracted were not willing to refund the money paid by the pilgrims thus they requested the pilgrims to submit their passports for the 2019 pilgrimage so they could reapply for the for visas on their behalf. 11. The Defendants pleaded that they paid for the tickets to EgyptAir Line on behalf of all the pilgrims and that the airline failed to refund the money to them and that the 2nd Defendant offered his vehicle to the Plaintiff to sell and defray the expenses of the pilgrims but the Plaintiff used the car for some months and did not sell the vehicle, but the foregoing notwithstanding the 2nd Defendant paid the sum of GHS35,000.00 to the Plaintiff. They also pleaded that they incurred expenses when the pilgrims were in Nigeria and the expenses ought to be deducted from the sum of money due to the Plaintiff. 12. The Defendants further pleaded that a visa was secured for one of the pilgrims named Ibrahim Bello but he refused to travel alone to Mecca. The Defendants also denied making an undertaking to transport the pilgrims to Mecca and averred that the Plaintiff was not entitled to its claim. IV. ISSUES CERTIFIED FOR TRIAL 13. As settlement broke down during the Pre-Trial Settlement stage the following issues were certified for trial on 23rd April 2021: a. Whether or not the Defendants applied for visas for the fourteen pilgrims whose money Plaintiff paid to the Defendants; 5 | P age b. Whether or not Defendants secured tickets at EgyptAir Line for the fourteen pilgrims whose money Plaintiff paid to Defendants; c. Whether or not 2nd Defendant released his car to defray Defendants’ indebtedness to Plaintiff; d. Whether or not Defendants are entitled to be paid for the expenses in visa acquisition and other associated costs in transporting the fourteen pilgrims to Nigeria; e. Whether or not a visa was procured for Ibrahim Bello who refused to undertake the pilgrimage; and f. Whether or not 2nd Defendant undertook to refund the money paid to him by Plaintiff if Defendants failed to perform their part of the contract. V. EVIDENCE OF PLAINTIFF 14. The Plaintiff’s witness statement which was filed on 8th October 2021, was adopted as his evidence-in-chief on 17th April 2024. His evidence was consistent with his pleading and I do not intend to reiterate them. I will therefore summarise his evidence. He testified that he received money from fourteen prospective pilgrims and that the 2nd Defendant agreed to transport the pilgrims to Mecca so he paid the Defendants an amount of GHS17,000.00 in respect of each pilgrim in the sum of GHS240,000.00. It was his evidence that the Defendants could not obtain visas for the pilgrims hence the pilgrims could not undertake the Hajj. 6 | P age 15. The Plaintiff testified that he demanded that the money paid should be refunded and the Defendants refunded the sum of GS70,000.00 and that presently the sum of GHS170,200.00 is outstanding plus the sums of GHS1,500.00 and GHS700.00 which he paid to the Defendants for the airfare to Nigeria and airport expenses of one pilgrim respectively. 16. It was also his evidence that the Defendants did not apply for visas for any of the pilgrims or purchase tickets for them. He did not tender anything in evidence. VI. EVIDENCE OF DEFENDANTS 17. The 2nd Defendant testified on behalf of the Defendants and his witness statement filed on 23rd December 2022, was adopted as his evidence-in-chief on 28th February 2025. I will summarise his evidence. It was his evidence that even though he applied for visas for all the pilgrims in Nigeria, the Plaintiff submitted the applications late hence their agent in Nigeria could not procure the visas for all the pilgrims save one. 18. He also testified that he travelled to Nigeria and redistributed the passports of the pilgrims to other agents. He testified that he arranged for and secured tickets for all the pilgrims from EgyptAir Line which the Plaintiff paid for on 18th August 2018. He further testified that the 1st Defendant paid the processing fee for the visas for all the pilgrims as well as the airfare but EgyptAir Line had refused to refund the money to the 1st Defendant. 7 | P age 19. It was his evidence that he offered his car to the Plaintiff to sell to offset the expenses incurred and that he had made a payment in the sum of GHS35,000.00 to the Plaintiff and further that he incurred expenses in Nigeria which ought to be deducted from what is due the Plaintiff. It was also his testimony that he secured a visa for one of the pilgrims, Alhaji Bello, who refused to undertake the Hajj. He did not tender anything in evidence. VII. ANALYSIS OF FACTS, EVIDENCE, LAW AND RESOLUTION OF ISSUES 20. I wish to point out that the proceedings which were part heard were adopted by this court, which had been differently constituted, on 30th January 2025. I must also state that counsel for Defendant did not file his written address even though on 19th March 2025, this court ordered that Addresses should be filed simultaneously by 17th April 2025. Counsel for Defendants is therefore deemed to have waived his right of address and I will refer to the decision of the Supreme Court in AMERLEY v OTINKORANG [1965] GLR 656 AT PAGES 658 TO 659 where the Court said that the rules do not oblige the Court to call upon counsel to address the court, in support. 21. Before I embark on the discussions, I must say that it is my view that the issues outlined above are not germane to the instant suit. In OMANE v POKU [1973] 2 GLR 66 the Court of Appeal per Apaloo JA (as he then was) said as follows at page 71 of the report: 8 | P age “Where, as in this case, the issues are clear both on the pleadings and in evidence, the failure to set them out in a summons for directions in accordance with Order 30, rr 1 and 2 of LN 140A is a mere irregularity which is curable under Order 70.” In BOAKYE v TUTUYEHENE [2007-2008] 2 SCGLR 970 the Court per Dr. Twum JSC (as he then was) said as follows at page 979 of the report: “It is clear to me that the single paper called the “summons for directions” under our practice, is nothing more than a legal pantomime which cannot make a judgment or the entire proceedings, null and void”. 22. I will thus on the authority of OMANE v POKU supra and BOAKYE v TUTUYEHENE supra resolve the issues set out in paragraph 13 above under the issues set out below which are as follows: a. Whether or not the sum of GHS170,200.00 is due to the Plaintiff from the Defendants; b. Whether or not Interest is payable on the said sum of GHS170,200.00 from 1st August 2018 to date of final judgment; c. Whether or not the sums of GHS1,500.00 and GHS700.00 being money Defendants collected from Plaintiff for the air fare for a passenger to be flown to Nigeria, and for airport expenses is due to the Plaintiff from the Defendants; and d. Whether or not Defendants are entitled to be paid for the expenses incurred in visa acquisition and other associated costs in transporting the fourteen pilgrims to Nigeria; 9 | P age 23. I intend to discuss the first three issues above together since they are interrelated. WHETHER OR NOT THE SUM OF GHS170,200.00 IS DUE TO THE PLAINTIFF FROM THE DEFENDANTS; WHETHER OR NOT INTEREST IS PAYABLE ON THE SAID SUM OF GHS170,200.00 FROM 1ST AUGUST 2018 TO DATE OF FINAL JUDGMENT; AND WHETHER OR NOT THE SUMS OF GHS1,500.00 AND GHS700.00 BEING MONEY DEFENDANTS COLLECTED FROM PLAINTIFF FOR PAYING THE AIR FARE FOR A PASSENGER TO BE FLOWN TO NIGERIA AND FOR AIRPORT EXPENSES IS DUE TO THE PLAINTIFF FROM THE DEFENDANTS The burden of proof required in civil matters may be found in Part II of the Evidence Act, 1975 (NRCD 323). The standard of proof in civil suits is by a preponderance of probabilities and this was explained in the Supreme Court decision of TAKORADI FLOUR MILLS v SAMIR FARIS [2005-2006] SCGLR 882 by Ansah JSC (as he then was) that the standard of proof in civil cases, as required by the rules of evidence is for the Plaintiff to produce evidence sufficient enough to make out his claim on a preponderance of probabilities as defined in section 12(2) of 10 | P age NRCD 323. He explained further that his understanding of the rules in NRCD 323 on the burden of proof is that in assessing the balance of probabilities, all the evidence, be it that of the plaintiff or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict. The Supreme Court said likewise in its decision in GIHOC REFRIGERATION & HOUSEHOLD PRODUCTS LTD v HANNA ASSI [2005-2006] SCGLR 458. 21. Section 14 of NRCD 323 provides that “except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting”. What the provision is saying in essence is that the burden of proof is not static. However, until it so shifts, a party has the burden of persuasion. In essence for this Court to rule in the Plaintiff’s favour, the standard of proof as set out in NRCD 323 must be met. Thus, the burden is on the Plaintiff to prove the allegations he has made. 22. The Supreme Court further explained the provisions of NRCD 323 in SAMUEL OKUDZETO ABLAKWA & ANOTHER v ATTORNEY-GENERAL & ANOTHER [2012] 2 SCGLR 845 as follows: “The established rule that he who asserts assumes the onus of proof. The effect of that principle is the same as what has been codified in the Evidence Act, 1975 (NRCD 323) s 17(1). What the above rules literally mean is that if a person goes to court to make an allegation the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. The Supreme Court held likewise in IN RE ASERE STOOL; NIKOI OLAI AMONTIA IV SUBSTITUTED BY TAFO AMON II) v AKOTIA OWORSIKA III (SUBSTITUTED BY) LARYEA AYIKU III [2005- 2006] SCGLR 637 where the court said at page 651 as follows: “Where the adversary of a party has admitted a fact advantageous to a cause of that party, what better evidence does the party need to establish that fact than by relying 11 | P age on his own admission.” I will refer to the decisions and provisions of NRCD 323 set out in paragraphs 19 to 21 in my discussions below. 24. The Plaintiff pleaded that it paid the sum of GHS240,200.00 to the Defendants with respect to the fourteen pilgrims’ pilgrimage to Mecca. He pleaded that he paid the sum of GHS1,500.00 for the airfare of one pilgrim who missed a flight to Nigeria and the sum of GHS700.00 for the pilgrim’s airport expenses to the Defendants. He also pleaded that the Defendants refunded GHS70,000.00 out of the sum of GHS240,000.00 so presently the sum of GHS170,200.00 is outstanding. The testimony of the Plaintiff was no different from the foregoing averments. 25. The Defendants pleaded that the money paid by the Plaintiff was paid to agents who have refused to refund same. They also pleaded that they paid EgyptAir Line for the tickets but the airline had also failed to refund the money. The evidence of the 2nd Defendant is akin to the Defendants pleadings regarding the issues above. 26. From the evidence on record there was an oral agreement between the Plaintiff and Defendants in 2018 as a result of which the sum of GHS240,200.00 was paid to the Defendants by the Plaintiff in July 2018 and August 2018 in respect of airlifting pilgrims to Mecca. The money did not belong to the Plaintiff but was paid to him by prospective pilgrims who were desirous of undertaking the Hajj to Mecca. The payment was in respect of airlifting the pilgrims to Mecca. 27. The Plaintiff vehemently denied under cross examination on 18th April 2024, that the Defendants procured tickets for the pilgrims. In my view, his evidence 12 | P age was not discredited during cross examination. The following ensued during cross examination of the 2nd Defendant on 28th February 2025: Q: And according to your evidence before the court you state in your witness statement that the Plaintiff made payment to you for fourteen visa applications. Is that correct? A: Yes. Q: In fact the Plaintiff made a total of GHS240,200.00 for the fourteen visa applicants. Is it not? A: Yes. Q: And in processing the visa application Plaintiff also made a further payment of GHS1,500.00 in respect of one person that you claim was late to join the flight to Nigeria? Isn’t it? A: Yes. Q: And I am putting it to you that in respect of this passenger an additional payment of GHS700.00 was made to cover that passenger’s airport expenses. A: Yes. Q: I am putting it to you that in total the sum of money that Plaintiff paid to you amounted to GHS242,400.00. 13 | P age A: Yes. 28. The following occurred during cross examination on 28th February 2025: Q: So you agree with me that the total money you refunded out of the lot was GHS70,000.00. Isn’t it? A: No. Q: Tell the court how much money you gave to the Plaintiff. A: The money I paid was more than that but where I am sitting now I do not have the figure. I will plead that the next court date I will be able to do calculations on all the money that was paid to him. 29. Even though he testified that he had refunded more than the sum of GHS70,000 to the Plaintiff. He did not produce any evidence in support of his claims. These claims of the Defendants are therefore unsubstantiated. 30. Under cross examination on the same day he testified that he paid part of the money to EgyptAir Line for the tickets of the pilgrims. Again, he did not produce any documentary evidence in support of this. I will in this regard refer to the decision in MAJOLAGBE v LARBI & OTHERS [1959] 1 GLR 190 in support and state that the assertions of the 2nd Defendant were mere assertions and nothing more. I am therefore unable to find from the evidence that the Defendants paid any money to EgyptAir Line for the airfare of the pilgrims. I am also unable to find from the evidence that the Defendants refunded any 14 | P age sum in excess of GHS70,000.00. There is ample evidence on the record that attests to the fact that the sum of GHS240,200.00 was paid to the Defendants by the Plaintiff out of which the sum of GHS70,000.00 has been refunded by the Defendants. 31. I have stated above the rule set out in SAMUEL OKUDZETO ABLAKWA & ANOTHER v ATTORNEY-GENERAL & ANOTHER supra to the effect that if a person goes to court to make an allegation the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. I accordingly find on the basis of the foregoing and the admissions made by the 2nd Defendant in paragraph 26 above, and in the light of the decisions in SAMUEL OKUDZETO ABLAKWA & ANOTHER v ATTORNEY-GENERAL & ANOTHER supra and IN RE ASERE STOOL; NIKOI OLAI AMONTIA IV SUBSTITUTED BY TAFO AMON II) v AKOTIA OWORSIKA III (SUBSTITUTED BY) LARYEA AYIKU III supra that presently the sum of GHS172,400.00 is due to the Plaintiff from the Defendants. 32. With respect to the Plaintiff’s claim for interest, it is my view that he is entitled to same since the Defendants have retained the money since August 2018. I will in this regard refer to the decision in IBM WORLD TRADE CORPORATION v HASNEM ENTERPRISES LIMITED [2001-2002] GLR 248. I will therefore award interest in accordance with the Courts (Award of Interest and Post Judgment Interest) Rules 2005, CI 52 at the prevailing commercial bank rate at a simple interest from August 2018 to date of final judgment. WHETHER OR NOT DEFENDANTS ARE ENTITLED TO BE PAID FOR THE EXPENSES INCURRED IN VISA ACQUISITION AND OTHER ASSOCIATED COSTS IN TRANSPORTING THE FOURTEEN PILGRIMS TO NIGERIA 15 | P age 33. There is no pleading by the Plaintiff regarding this matter. However, he testified that the Defendants are not entitled to a refund and that expenses for visa acquisition, travelling and other incidental expenses were paid for separately. The Defendants pleaded that they expended money during the visa acquisition in Nigeria which the Plaintiff ought to refund and the 2nd Defendant’s testimony was to the same effect. However, there is no evidence, oral or documentary about how much the Defendants spent. I am therefore unable to find that the Defendants expended money during the visa acquisition in Nigeria which the Plaintiff ought to refund. 34. The claim for damages for breach of contract in my view cannot be sustained from the pleadings and evidence on record. I thus cannot make any award in that regard. VIII. CONCLUSION 35. In view the of the foregoing I hereby enter judgment for the Plaintiff on relief “1” that is, recovery of the sum of GHS170,200.00 being the outstanding amount paid to Defendants by the Plaintiff; Relief “2” which is interest on the said sum of GHS170,200.00 from 1st August 2018 to date of final judgment at the prevailing commercial bank rate at a simple interest from August 2018 to date of payment and “3” Recovery of the sum of GHS2,200.00. Relief “4” hereby fails and I will award costs in the sum of GHS15,000.00. (SGD) YAA ONYAMEYE GYAKOBO (J.A) JUSTICE OF THE COURT OF APPEAL (SITTING AS AN ADDITIONAL HIGH COURT JUDGE) 16 | P age COUNSEL IDDI BAAH-KUREY FOR RAPHEAL ALIJINA FOR THE PLAINTIFF C. A CHAMBERS FOR THE DEFENDANTS AUTHORITIES 1. AMERLEY v OTINKORANG [1965] GLR 656 AT PAGES 658 TO 659 2. OMANE v POKU [1973] 2 GLR 66 3. BOAKYE v TUTUYEHENE [2007-2008] 2 SCGLR 970 4. TAKORADI FLOUR MILLS v SAMIR FARIS [2005-2006] SCGLR 882 5. GIHOC REFRIGERATION & HOUSEHOLD PRODUCTS LTD v HANNA ASSI [2005-2006] SCGLR 458. 6. SAMUEL OKUDZETO ABLAKWA & ANOTHER v ATTORNEY-GENERAL & ANOTHER [2012] 2 SCGLR 845 7. IN RE ASERE STOOL; NIKOI OLAI AMONTIA IV SUBSTITUTED BY TAFO AMON II) v AKOTIA OWORSIKA III (SUBSTITUTED BY) LARYEA AYIKU III [2005-2006] SCGLR 637 8. MAJOLAGBE v LARBI & OTHERS [1959] 1 GLR 190 9. IBM WORLD TRADE CORPORATION v HASNEM ENTERPRISES LIMITED [2001-2002] GLR 248 17 | P age