LOHMANN TIERZUCHT GMBH VRS. AKATE FARMS & TRADING COMPANY LTD AND ANOTHER (CM/RPC/0832/2019) [2025] GHAHC 30 (16 January 2025)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COMMERCIAL DIVISION (COURT 1) OF THE HIGH COURT OF JUSTICE ACCRA, HELD ON THURSDAY THE 16TH DAY OF JANUARY, 2025 BEFORE HER LADYSHIP JUSTICE SHEILA MINTA SUIT NO. CM/RPC/0832/2019 LOHMANN TIERZUCHT GMBH - PLAINTIFF VRS. 1. AKATE FARMS & TRADING COMPANY LTD. 2. ALHAJI ABUSSALAM - DEFENDANTS ------------------------------------------------------------------------------------------------------ JUDGMENT By the Plaintiff’s Amended Writ of Summons and Statement of Claim filed on 3rd November, 2023 and issued against the Defendants, it claimed the following reliefs:- a. Recovery of USD$247,848.80 being the money due for the supply of chicks, vaccines and hatching supplements with the 1st Defendant. b. Interest on the sum of US$247,848.80 from the day of investment at the respective interest rate till the date of final payment. c. General damages for breach of contract. d. Costs. The Plaintiff is a German company which trades in the sale and distribution of poultry products and related services. The 2nd Defendant is just the Managing Director and shareholder of 1st Defendant company. The Plaintiff’s case is that at the request of Defendants, it supplied them with day old checks, vaccination and hatching supplements on two different occasions at the cost of USD$157,500.00 and USD$145,065.60 respectively P a g e 1 | 6 SUIT NO. CM/RPC/0832/2019 – LOHMANN TIERZUCHT GMBH VS. AKATE FARMS AND TRADING COMPANY LTD. & ANOR. totaling USD$302,565.60. Out of this said sum Defendants paid USD$54,716.80 leaving an outstanding balance of USD$247,848.80 due and unpaid to the Plaintiff since July 2017. In support of Plaintiff’s case, it tendered Exhibit “A” being evidence of shipment of goods in the sum of USD$157,500.00 dated 16th August, 2016; Exhibit “B” evidence of shipment of goods in the sum of US$145,065.60 dated 24th July, 2017 to 1st Defendant. Exhibit “C” is also a letter of 1st Defendant to Plaintiff dated 12th May, 2017 requesting a payment plan for the USD$157,500.00 debt. Exhibit “D” is the account statement of the 1st Defendant with Defendants’ outstanding debt of USD$247,848.80. From these Exhibits, the 2nd Defendant’s joinder to the suit by the Plaintiff is not clear. The Defendants were represented by one Counsel. This is all the Defendants had to say in their Statement of Defence, and I will reproduce the whole of the Defendants’ Statement of Defence:- 1. Save as hereinafter expressly admitted, Defendants deny each and every averment in the Statement of Claim as if same were set out in extensor and denied seriatim. 2. Defendants admit paragraphs 1, 2, 3, 4, and 5 of the Statement of Claim. 3. Save that Defendants are indebted to the Plaintiff through their long standing business transaction, Defendants deny the amount being claimed by Plaintiff and the averments in paragraphs 6, 7, 8, 11, 12, 13, and 14 of the Statement of Claim. 4. Wherefore Defendants state that Plaintiff is not entitled to the claims. It is in their Witness Statement that they averred that 1st Defendant’s farm was struck with some disease that caused the death of 70% of their chicks. The Defendants did not deny the fact that those specific consignments were received by 1st Defendant thus property in those goods passed to Defendants which entitled Plaintiff to the prices in accordance with the agreed terms. See Section 66(1) of the Sale of Goods Act, 1962 (Act 137). What Defendants alleged was that some part payment was made and again challenged the figure put forth in the Plaintiff’s claim. Unfortunately, they did not tell the Court how much had been paid P a g e 2 | 6 SUIT NO. CM/RPC/0832/2019 – LOHMANN TIERZUCHT GMBH VS. AKATE FARMS AND TRADING COMPANY LTD. & ANOR. for those consignments and what in their view was outstanding; neither did they tender any document in support of their assertion. The Defendants failed to testify and be cross- examined in Court when given the opportunity even though Counsel for the Defendants cross-examined the Plaintiff’s witness. After pre-trial talks settlement broke down, the following issues were set down for trial. 1. Whether or not the Defendants entered into an agreement on 15th August, 2016, with the Plaintiff to be supplied chicks, vaccination and hatching supplements at the cost of USD$145,065.60. 2. Whether or not the Defendants and the Plaintiff entered into an agreement on 22nd September, 2017 for the Plaintiff to supply chicks, vaccination and hatching supplements at the cost of USD$145,065.60. 3. Whether or not the Plaintiffs supplied the aforementioned chicks, vaccination and hatching supplements to the Defendants. 4. Whether or not the 1st Defendant paid an amount of USD$54,716.80 as part-payment of their contractual obligations with the Plaintiff. 5. Whether or not the total amount of money outstanding, to be paid by the Defendants of the Plaintiff is USD$247,848.80. EVALUATION It is not in doubt that the 1st Defendant received quantities of day-old chicks, vaccination and hatching supplements from the Plaintiff on 15th August, 2016 for USD$157,500 and also on 22nd September, 2017 for USD$145,065.60. This can be gleaned from the evidence before the Court. The Defendants did not deny that those values of items supplied were received. Plaintiff tendered Exhibits “A” “B” “C” and “D” which have not been challenged by the Defendants. It is trite that where an issue is admitted there is no requirement to prove same as stated by the apex Court in the case of In Re Asere Stool; Niiloi Olai vrs. Amontia IV (substituted by Nii Tafo Amon III) vrs. Akortia Oworsika III (substituted by Laryea) P a g e 3 | 6 SUIT NO. CM/RPC/0832/2019 – LOHMANN TIERZUCHT GMBH VS. AKATE FARMS AND TRADING COMPANY LTD. & ANOR. [2005-2996] SCGLR 637 cited by Counsel for the Plaintiff which I agree with. Therefore, there is no need to discuss issues 1, 2 and 3. Issues 4 and 5 will be merged into the issue “what is the outstanding amount due and owed the Plaintiff by the Defendants for the supply of Plaintiff’s goods.” The duty of a Plaintiff who comes to Court is to be able to prove his or her claim on the preponderance of probabilities. The burden of proof in some instances may shift to the Defendant particularly in respect of allegations of fact made by him. In Zambrama vrs. Segbedzi [1991] 2 GLR 221 Kpegah JA (as he then was) stated as follows: “a person who makes an averment or assertions has the burden to establish that his averment or assertion is true.” See also the case of Bank of West Africa Ltd vrs. Ackun [1963] 1 GLR 176-182 where the Court held as follows:-“The onus of proof in civil cases depends upon the pleadings. The party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof”. The Plaintiff put forth evidence before this Court that at the request of the 1st Defendant goods were supplied 1st Defendant by Plaintiff. Plaintiff was able to establish the fact that those two consignments as contained in Exhibits “A” and “B” where received by the Defendants. Per the Section 46(1) of Act 137 cited above, it states:- “Where under a contract of sale goods, the property has passed to the buyer, and the buyer wrongfully refuses or neglects to pay for the goods according to the terms of the contract, the seller may maintain an action against the buyer for the price of the goods.” Having received the goods from the Plaintiff, the 1st Defendant had an obligation to pay the Plaintiff the value of the goods received. There is proof that some payments have been made. The Defendants admits owing the Plaintiff but purport to challenge the sum claimed by the Plaintiff. The Defendants’ pleadings did not assist in its purported defence put forth. From the evidence and the pleadings before the Court, and the evaluation of same, the Plaintiff’s case on the issue of the outstanding debt is more probable than the Defendants’. The Court has also considered the request for payment plan proposed by the 1st Defendant (Exhibit “C” dated 12th May, 2017) and the fact that Defendants have failed to prove that P a g e 4 | 6 SUIT NO. CM/RPC/0832/2019 – LOHMANN TIERZUCHT GMBH VS. AKATE FARMS AND TRADING COMPANY LTD. & ANOR. they have paid more than what is stated in the Exhibit “D” (statement of account of 1st Defendant). I therefore find the claim of the Plaintiff against the Defendants for the recovery of the sum of the sum of USD$247,848.80 not contested and therefore entitled to same. Judgment is accordingly entered in favour of the Plaintiff against the 1st Defendant for the following:- 1. The sum of USD$247,848.80. 2. Interest on the said sum at the prevailing Bank of Ghana libor rate from 22nd November, 2017 (being 60 days after date of delivery of last consignment) till date of judgment. 3. The Plaintiff’s claim for general damages for breach of contract fails as the interest awarded would compensate Plaintiff for the loss of use of its money. 4. I award cost of Thirty Thousand Ghana Cedis (GHS30,000.00) against Defendants in favour of Plaintiff. (SGD.) SHEILA MINTA, J. JUSTICE OF THE HIGH COURT REPRESENTATIONS PARTIES: ABSENT P a g e 5 | 6 SUIT NO. CM/RPC/0832/2019 – LOHMANN TIERZUCHT GMBH VS. AKATE FARMS AND TRADING COMPANY LTD. & ANOR. COUNSEL: DAVID AYESU DEBRAH, ESQ., HOLDING BRIEF FOR PAPA YAW OWUSU- ANKOMAH, ESQ., FOR PLAINTIFF – PRESENT COUNSEL FOR THE DEFENDANTS – ABSENT AUTHORITIES: 1. IN RE ASERE STOOL; NIILOI OLAI VRS. AMONTIA IV (SUBSTITUTED BY NII TAFO AMON III) VRS. AKORTIA OWORSIKA III (SUBSTITUTED BY LARYEA) [2005-2996] SCGLR 637 2. ZAMBRAMA VRS. SEGBEDZI [1991] 2 GLR 221 KPEGAH 3. BANK OF WEST AFRICA LTD VRS. ACKUN [1963] 1 GLR 176-182 4. SECTION 66(1) OF THE SALE OF GOODS ACT, 1962 (ACT 137) P a g e 6 | 6 SUIT NO. CM/RPC/0832/2019 – LOHMANN TIERZUCHT GMBH VS. AKATE FARMS AND TRADING COMPANY LTD. & ANOR.