Sintex Containers Ghana Limited v Decorplast Limited (CM/RPC/0661/2023) [2025] GHAHC 88 (2 June 2025)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE (COMMERCIAL DIVISION 6) HELD IN ACCRA ON MONDAY THE 2ND DAY OF JUNE, 2025 BEFORE HER LADYSHIP JUSTICE SEDINA AGBEMAVA SUITNO.: CM/RPC/0661/2023 SINTEXCONTAINERS GHANA LIMITED … PLAINTIFF VRS. DECORPLASTLIMITED … DEFENDANT JUDGMENT The Plaintiff claims against the Defendant the recovery of the sum of Five Hundred Thousand United States Dollars (US$500,000.00) being financial assistance it offeredthe Defendant. EndorsedonitsWrit arethe underlisted reliefs: a. An Order for the Defendant to pay the amount of Five Hundred Thousand United States Dollars (US$500,000.00) being the outstanding amountowed tothe Plaintiff forthefinancial assistance. b. An Order for the payment of interest on the amount claimed in (a) above from the date of judgment at the prevailing commercial bank rateuntildate offinalpayment ORINTHE ALTERNATIVE Page1of17SuitNo.CM/RPC/0661/23SintexContainersGhanaLimitedVrs.DecorplastLimited A1. An order for the Defendant to secure the consent of the Lands Commission to consummate the Deed of Assignment dated 23rd of June, 2021 executed between the Parties c. Costs d. Anyorder(s) this Honourable Courtmay deemfit. In its Statement of Claim, the Plaintiff pleads that its Managing Director has a personalrelationshipwith the Managing DirectoroftheDefendant. That the Defendant through its Managing Director had made an express demand of the Plaintiff, also through its Managing Director for the sum of Five Hundred Thousand United States Dollars (US$500,000.00) to enable it meet certain pressing financialobligations. The uncontested facts from the record is that the Five Hundred Thousand United States Dollars (US$500,000.00) was made available to the Defendant, which the Defendant received. The Defendant also furnished the Plaintiff with a Board resolution approving the assignment of its interest in a parcel of land in the North Industrial Area and a deed ofassignment executed infavourofthe Plaintiff in respectofthis property. Even though this deed of assignment tendered by the Plaintiff as Exhibit ‘D’ was rejected by the Court and marked R, it was admitted by the Defendant through its Witnessthat it actually executedthis deedofassignment. Page2of17SuitNo.CM/RPC/0661/23SintexContainersGhanaLimitedVrs.DecorplastLimited The reason why the Plaintiff is in Court is because it claims the Defendant has refused to pay back the sum lent to it and has evinced every intention not to pay back the money. The Defendant came out swinging. It filed a twenty-one paragraph Statement of Defence and averred that there was no merit to the Plaintiff’s claim. It urged the Courtto dismiss theclaim for this reason. Paragraphs 5 and 6 of the Defendant’s Defence is of particular interest to the whole action. The Defendant avers in the abovementioned paragraphs that the Plaintiff’s claim did not represent a true and faithful account of the transaction between the Parties. It contended that the Plaintiff had contrived the facts to mislead the Court as to the truestate ofaffairs. In what must have appeared as a shocking ambush to the Plaintiff, the Defendant alleged that it had paid the Plaintiff, cash totalling Six Hundred and Seventy Thousand United States Dollars (US$670,000.00) being the principal and interest on the amount owed. That being the case, Defendant says it had paid up its debt and owed thePlaintiff nothing. Issues weresettled asfollows; 1. Whether or not the Plaintiff acting through its Managing Director advanced an amount of Five Hundred Thousand United States Dollars (US$500,000.00) toDefendant asfinancialassistance. 2. Whether or not the Defendant agreed to assign all its interest in the property described as parcel No. 10449 Block 1 Section 050, situate at North Industrial Page3of17SuitNo.CM/RPC/0661/23SintexContainersGhanaLimitedVrs.DecorplastLimited Area in the Greater Accra Region and measuring an approximate area of 1.43 acresshould theDefendant default in therepayment. 3. Whether or not the Defendant has repaid the Plaintiff to the tune of Six Hundred andSeventy Thousand United States Dollars(US$670,000.00). 4. Whether or not the Deed of Assignment dated 23rd June, 2021 transferring the interestofthe Defendant tothe Plaintiff is valid. 5. Anyotherissue(s) arising fromthe pleadings. It is my view that the only issue left for the Court to determine is the 3rd issue of whether or not the Defendant has repaid the plaintiff to the tune of Six Hundred and Seventy Thousand United States Dollars (US$670,000.00). This is because the Plaintiff abandoned its alternative relief for an Order compelling the Defendant to secure the consent of the Lands Commission to perfect the Deed of Assignment to the Plaintiff, and stuck to the recovery of the sum of Five Hundred Thousand United States Dollars(US$500,000.00) withinterest. The Law is settled that in civil cases, the burden of proof lies on the person making theclaim. Ahost ofcase Law, backed by statute haslaid down the principle. Put another way, the Party asserting a claim carries the burden of proof. This principle has statutory backing under Section 11 (1) & (4) of the Evidence Act, 1975 NRCD323.Itreads; Page4of17SuitNo.CM/RPC/0661/23SintexContainersGhanaLimitedVrs.DecorplastLimited (1)For the purposes of this Decree, the burden of producing evidence means the obligation of a Party to introduce sufficient evidence to avoid a Ruling against him onthe issue. (4) In other circumstances the burden of producing evidence requires a Party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude thatthe existence ofthefact was moreprobable thanitsnon-existence. It is also required under Section 12(1) of the Act that Parties prove their respective cases by apreponderance ofthe probabilities. What this means is that in Order for the Court to find in favour of Plaintiff, he/she ought to introduce admissible evidence, sufficient to convince the Court that their case is moreprobable thanthe case the opponenthas put across, and vice versa. The Court is required to weigh all the evidence led at the trial that is supportive of Plaintiff’s case against the evidence that supports Defendant’s case and make a reasonedJudgment astowhich Party’s case is morebelievable. Seecase ofFrimpongvMr Biney and Another(J4/24/2015)[2016]GHASC 88 In proof of its case, the Plaintiff tendered in evidence Exhibit B-series. This comprised an Ecobank cheque issued in favour of the Defendant and a Statement of Account of the Plaintiff from the 1st of June to the 30th of June 2021 from Ecobank Ghana. This Statement of Account clearly evidences the transfer of an amount of Five Hundred Thousand United States Dollars (US$500,000.00) to the Defendant on the 24thofJune, 2021. Page5of17SuitNo.CM/RPC/0661/23SintexContainersGhanaLimitedVrs.DecorplastLimited The reference reads: REF:H69LOCH211750019 CHEQUE DEPOSIT-HSE CHEQUE- EGH CHQ 000276 IFO DECORPLAST LIMITED-FX BO SINTEX CONTAINERS LIMITED500,000. This is satisfactory proof that the Plaintiff indeed transferred the said amount to the Defendant. As I have earlier stated in the Judgment, this fact remains undisputed as the Defendant admits that it received this sum. The burden therefore shifts to the Defendant to provethat it liquidated its debt tothePlaintiff. Ithas beenstatedin Lamptey aliasNkpa vFanyie [1989-90] 1GLR286that “…on general principles, it is the duty of a Plaintiff to prove his case; he must prove what he alleges. However, when on a particular issue, he leads evidence, then the burden shifts to the Defendant to lead sufficient evidence to tip the scales in his favour.Ifhe is able todo this, he wins; ifnot, he losesonthat issue.” It has been submitted on behalf of the Defendant in its address to the Court that the transaction was purely between friends, Manoj Budharani and Arun Malkani who arethe respective Managing Directors ofthe Parties. According to the Defendant, the Parties were merely mediums through which the transaction was performed and were not the real Lender and Borrower in this instance. I have had no difficulty in rejecting this contention outright. It is a clear afterthought and cannot be sustained. There was no challenge by the Defendant when it was sued that the transaction was aprivateone undertakenby itsManaging Director. Page6of17SuitNo.CM/RPC/0661/23SintexContainersGhanaLimitedVrs.DecorplastLimited The record is replete with admissions and proof that it was the Defendant who requested the loan through its Managing Director, Arun Malkani. Exhibit B-series shows that the cheque issued to the Defendant was the Plaintiff’s corporate forex cheque, and notthe personalcheque ofPlaintiff’sManaging Director. Again, the cheque was received in the Defendant’s account and not the personal Account ofthe Defendant’sManaging Director. No other evidence was provided to the Court that the money was received or personallyutilised by theDefendant’sManaging Director. The Defendant has averred in paragraph 2 of its defence that it admitted paragraphs 1, 2, 3, 4, 5 and 9 of the Plaintiff’s Statement of Claim. Paragraph 5 of the Plaintiff’s StatementofClaimreads: “The Plaintiff states that by the express demand of the Defendant, through its Managing Director, Mr. Arun Malkani gave an amount (sic) of US$500,000.00 as financial assistance toenable the Defendantmeetpressing financial obligations.” Further, the 2nd Defendant Witness had testified through his witness statement in his evidence inchief asfollows; “In 2021, the Defendant Company fell into serious financial distress and as a result, I started reaching out to members of the Indian business community for financial help. I therefore reached out to the Managing Director of the Plaintiff Company, Manoj Budhrani to request for financialassistance”. Clearly,aCompany actsthroughitsDirectors and it is conceivable forthe Plaintiff or its Managing Director to presume the regularity of the acts of the Directors on behalf ofthe Defendant. Page7of17SuitNo.CM/RPC/0661/23SintexContainersGhanaLimitedVrs.DecorplastLimited Itisprovided under Section148(1)(b) ofthe Companies Act 2019,Act 992that “Except as provided in Section 147, the acts of an Officer or agent of a Company are not acts of the Company, unless the Company, acting under paragraph (a) has represented to the Officer or agent as having the authority of the Company to act in the matter, in which event the Company is civilly liable to a person who has entered into the transaction in reliance on that representation, unless that person had actual knowledge that the officer or agent did not have the authority, or unless, having regard to the position with, or relationship to the Company, that person ought to haveknownofthe absence ofauthority. Applying the test to the facts in this instance, Mr. Arun Malkani was known to Plaintiff’s Managing Directoras Defendant’sManaging Director. In Law he is an integral organ of the Company and able to bind the Company in transactions ordealingswith others. The Plaintiff’s Managing Director was therefore entitled to assume that the Defendant’s Managing Directorhad the authorityto actonbehalf ofthe Company. Date-Bah JSC, in the case of Oxyair Ltd & Darko v Wood & Ors [2005-2006] SCGLR 1057held that “In terms of Section 139 of the Companies Code 1963, unless the Defendants were able to establish that the Plaintiffs had actual knowledge, before the conclusion of the oral contract, of any defect in the second Defendant’s authority to bind his Company orthathe had acted in anirregular manner, thenthe Company was bound. Section 141 of the Code had also abolished the common Law Rule that a Party dealing with a company was deemed to have constructive notice of the contents of allthe Companies’ public documents filed atthe CompaniesRegistry. Page8of17SuitNo.CM/RPC/0661/23SintexContainersGhanaLimitedVrs.DecorplastLimited The provision in Section 141 implies that at the time that the Plaintiffs entered into their parol contract with the Defendants they had no constructive notice of the contentsoftheRegulations oftheCompany. Accordingly, any restrictions on the authority of the Managing-Director contained in the Regulations do not affect the validity of the contract entered into by him, unless thePlaintiffs’ actualknowledge ofsuch restriction is proved. Furthermore, Section 142(a) of the code restates the effect of the rule in Turquand’s Case by affirming that any personhaving dealings with a Company or with someone deriving title under the Company shall be entitled to make the following assumptions and the Company and those deriving title under it shall be stopped fromdenying their truth: -that the Company’s Regulationshave been duly complied with.” That case was decided under the old Companies Code, 1963,Act 179 but the sections referred to in the Oxyair case (supra) are in the same terms as Sections 144-156 of the presentCompanies Act 2019,Act 992. The claim of the Defendant that the transaction was between Two (2) individuals cannot thereforebe sustained having regardto the evidence onthe record. It has been further submitted on behalf of the Defendant through its address that the PW1 used some kind of coercive powers to get the DW2 execute Exhibit ‘C’, because he was held under ametaphorical financialsword ofDamocles. From my observation of both Witnesses in the box, I would think that the reverse is rather more probable that the DW2 knowingly executed an unenforceable resolution Page9of17SuitNo.CM/RPC/0661/23SintexContainersGhanaLimitedVrs.DecorplastLimited of the Company for the PW1. I do not wish to cast any aspersions on the Plaintiff Witness but I observed a few notable differences between the Managing Directors of bothCompanies asthey testified fromthe box. From their speech patterns, diction and accents, it would appear that the Defendant Managing Director has benefitted from a western education, probably higher education. He was certainly more eloquent and self- assured than the Plaintiff’s Managing Director and gave lengthier explanations to his answers, compared to the almost monosyllabicones offeredby the Plaintiff Witness. This will lead me to conclude that the DW2 was not a novice concerning worldly affairs but a shrewd businessman and certainly knew the effect of the defective board resolution and the rejected Deed of Assignment he executed for the Plaintiff. This is notthe only evidence ofsleight ofhand attemptedby the DW2. Attached to his witness statement is Exhibit ‘4’, a purported deed of Mortgage betweenDefendant and First Atlantic Bank. This Exhibit was intended to prove that Defendant’s property that it allegedly assigned to the Plaintiff in the event of a default had earlier on in time been mortgagedtothe Bank. It had been purportedly executed by a Director of Defendant, whom from the evidence from the trial is his Uncle Indru. DW2 also signed as secretary to the Company,eventhoughhe is notthe Company Secretary. The document was also not executed by the Bank, the alleged mortgagee. This is the document the Defendant intended to rely on as proof that its property was already Page10of17SuitNo.CM/RPC/0661/23SintexContainersGhanaLimitedVrs.DecorplastLimited encumbered, had the Plaintiff not abandoned that relief. It had no qualms about throwing dust in theeyesofthe Courttofurtherits case. I do not find the DW2 worthy of credit, because of all the murky dealings surrounding thecorporategovernance ofthe Defendant. It has been held in Barkers-Woode v Nana Fitz [2007-2008] SCGLR 879 that the common law has always followed the common sense approach that the burden of persuasion on proving all facts essential to any claim lies on whoever is making the claim. The Defendant attempted todischarge its burdenin proofthat it had paid the sum of Six Hundred and Seventy Thousand United States Dollars (US$670,000.00) to Plaintiff by testifying throughTwo (2) Witnesses. DW1 Emmanuel Quaye Abbey testified that he was instructed to deliver various sums of money by his Managing Director to Plaintiff Company between 2022 and 2023. Under cross examination however, the witness asserted that he had never been to Plaintiff’s Company in 2023, despite his own testimony and the pleadings of the Defendant in its defence. Defendant Counsel urges on the Court to disregard this inconsistency ascolourless. I am afraid, I’m unable to disregard this glaring inconsistency as having no effect on the Witness’ credibility. The Witness was unable to explain the inconsistency betweenhis Evidence in Chiefand the Statement ofDefence of theDefendant, seeing the adamant way he insisted under cross examination that he had never visited the Plaintiff’s premisesin 2023. Page11of17SuitNo.CM/RPC/0661/23SintexContainersGhanaLimitedVrs.DecorplastLimited I therefore attach very little weight to his rather unreliable evidence that he sent moniestothe Plaintiff under instructions fromhis Managing Director. The Law has been stated time without number and laid down in numerous cases that if a Party made an averment and that averment was true, then there was bound toexist, corroborative evidence ofthataverment. The cases of Majolagbe v Larbi [1959] GLR 192 and Zabrama v Segbedzi [1991] 2 GLR221areauthorities forthis proposition. The Defendant is insistent that it has paid back the debt it owes the Plaintiff, yet oddly enough, it has been unable to reproduce a single receipt issued as evidence of paymentofthis ratherprincely sum. DW2 tried to explain that he found it disrespectful to demand a receipt from the PW1 because he regarded him as his older brother, so he did not insist on one when PW1refused to issue any receipts forpayment. I reject this explanation outright. This would have been avery reckless stance to take, especially when dealing withaCompany’sfinances. This would mean that at anytime at all the Defendant was open to a shake-down by thePlaintiff because there was no proofofpayment. Secondly, I have observed that the DW2 would be a shrewd businessman. He is not a simpleton and would know that he had to have credible proof of the repayment of theloan. Page12of17SuitNo.CM/RPC/0661/23SintexContainersGhanaLimitedVrs.DecorplastLimited He may have been relying on some obscure Indian culture of according respect but that was not made evident at the trial. I therefore find his explanation incredible and rejectit outright. The Defendant presented a purported record of payment as Exhibit ‘2’, but it was generated by the Defendant itself and just shows a table with figures. I find it to be a self-serving document and willattachno weight toit. The DW2 in his testimony to the Court has stated that even though the PW1 had refused to issue receipts for the payments made, Plaintiff had admitted to these payments in whatsapp text messages. He tendered in evidence Exhibits ‘1’ and ‘3’ being the allegedwhatsapp messages confirming payments. Defence Counsel has submitted that these Exhibits corroborates the claim of the Defendant that it has made payments of Seventy Thousand United States Dollars (US$670,000.00)tothe Plaintiff. On the contrary, I am in full Agreement with Counsel for the Plaintiff that these Exhibits cannot be relied on as proof of the Defendant’s payment of the sum loaned it. In the proceedings of the 17th day of March, 2025, the DW2 was cross examined as follows; Q:Go to Exhibit 3,thefirst page. Canyoumentionthe name yousee onExhibit ‘3? A:It saysNatasha Q:Beneaththe Natasha, what name do yousee? A:It saysManojBudhrani Page13of17SuitNo.CM/RPC/0661/23SintexContainersGhanaLimitedVrs.DecorplastLimited Q:Sois Exhibit 3acorrespondence betweenNatasha andManojBudhrani? A: How whatsapp works is if you take a screenshot whilst on another call, the name of the person on the call will show so I assume my lawyer, Mr. Randall Obeng-Sakyi was on another call with a lady called Natasha whilst taking a screenshot to forward this. It has nothing to do with a chat or conversation with myself, Natasha, Randall orMr.Manoj. Q:SoExh3was printed fromanotherperson’sphone not directly fromyour phone? A: These were printed from my lawyer’s office in my presence which I forwarded to himas screenshots. Q:SoExhibit 3was printed fromyourlawyer’sphone in your presence? A:That is correct. I do not think the DW2’s evidence adds up. If he was in his lawyer’s office when the Exhibit was being printed, and in his presence, why could he not print it directly fromhis phone? Further when it was realised that Natasha’s phone call interfered with the printout, why could Defence Counsel not have printed another one out? I am doubtful about theauthenticity ofthese printoutsand willtherefore attachnoweight to it. Under Section 7 of the Electronic Transactions Act , 2008 Act 772, the Court is required to consider a number of factors in assessing the evidential weight to attach to an electronic record and these include the reliability of the manner in which the electronic record was generated, displayed, stored or communicated, the reliability Page14of17SuitNo.CM/RPC/0661/23SintexContainersGhanaLimitedVrs.DecorplastLimited of the manner in which the integrity of the information was maintained, the manner in which the originator was identified and any other factors the Court considers relevant. In this instant suit, how the record was generated, the identity of the Originator of therecord and howit was communicated cannot be relied on. I have earlier on voiced out my apprehension as to the authenticity of the record. I cannot accept it as proof that it was communication between the PW1 and DW2 relating topaymentsmade in relation tothe moneyowed by the Defendant. On the balance of probability, I find the Plaintiff’s case is more probable than not. It has succeeded in making out its claim that it lent a sum of Five Hundred Thousand United States Dollars (US$500,000.00) to the Defendant, which sum Defendant has failed topay. Judgment is hereby entered for the Plaintiff on its relief and the Order is made for the Defendant to pay to the Plaintiff the sum of Five Hundred Thousand United States Dollars (US$500,000.00) being the amount owed the Plaintiff for the financial assistance it offeredthe Defendant. Interest is also ordered to be paid on the said sum at the United States Federal Bank ratefromthe date ofJudgment tothe dateoffinal payment. CostsofSixty Thousand Ghana Cedis (GH¢60,000.00) awardedto thePlaintiff. (SGD) SEDINA AGBEMAVA J Page15of17SuitNo.CM/RPC/0661/23SintexContainersGhanaLimitedVrs.DecorplastLimited JUSTICEOF THE HIGH COURT COUNSEL 1. NANA KWADWO ADJEI ADDO WITH VANESSA ZORMELO HOLDING BRIEFFORBOBBYBANSONFOR THE PLAINTIFFPRESENT 2. SIGISMUND PHIXON-OWOO WITH RITA TANDOH HOLDING BRIEF FORRANDALL OBENG-SAKYIFOR THE DEFENDANT PRESENT LISTOF CASES 1. FRIMPONGVRS.MR BINEYAND ANOTHER(J4/24/2015) [2016]GHASC 88. 2. LAMPTEYALIASNKPA VRS.FANYIE [1989-90] 1GLR 286. 3. OXYAIRLIMITED& DARKOVRS.WOOD& ORS. [2005-2006]SCGLR 1057. 4. BARKERS-WOODEVRS. NANA FITZ[2007-2008] SCGLR879. 5. MAJOLAGBEVRS.LARBI[1959] GLR 192. 6. ZABRAMAVRS. SEGBEDZI [1991]2GLR 221. STATEDLAW 1. SECTION11(1)& (4) OFTHE EVIDENCE ACT, 1975NRCD323. Page16of17SuitNo.CM/RPC/0661/23SintexContainersGhanaLimitedVrs.DecorplastLimited 2. SECTION12(1). 3. SECTION148(1)(B) OF THE COMPANIESACT2019,ACT992. 4. SECTION147. 5. SECTION139OFTHE COMPANIESCODE 1963. 6. SECTION141. 7. SECTION142(A). 8. COMPANIESCODE, 1963,ACT179. 9. SECTIONS144-156 OFTHE PRESENTCOMPANIESACT2019,ACT992. 10. SECTION7OFTHE ELECTRONICTRANSACTIONS ACT, 2008ACT772. Page17of17SuitNo.CM/RPC/0661/23SintexContainersGhanaLimitedVrs.DecorplastLimited