LISS PETROLEUM LIMITED VRS. GENERAL SHIPPING & TRADING SERVICES LTD. AND ANOTHER (E2/59/2019) [2024] GHAHC 173 (23 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT ‘B’ – HELD IN TEMA IN THE GREATER ACCRA REGION OF THE REPUBLIC OF GHANA – BEFORE HER LADYSHIP JUSTICE PATRICIA QUANSAH (JUSTICE OF THE HIGH COURT) ON TUESDAY THE 23RD OF JULY 2024. SUIT NO.: E2/59/2019 ________________________________________________________________ LISS PETROLEUM LIMITED MIREKU HOUSE, TEMA PLAINTIFF MOTORWAY ROUND ABOUT VRS 1. GENERAL SHIPPING & TRADING SERVICES LTD. 1ST FLOOR VERTICAL COURT BUILDING COMMUNITY 5, TEMA DEFENDANTS 2. JUSTICE ASARE GENERAL SHIPPING & TRADING SERVICES LTD COMMUNITY 5, TEMA ________________________________________________________________ PLAINTIFF REPRESENTED BY ALI ADAMS DEFENDANTS REPRESENTED BY MAXWELL ASARE ________________________________________________________________ JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 1 JUDGMENT [1] INTRODUCTION [i] This matter has a murky history having been pending before this Court since 2019, even though the Plaintiff herein simply seeks the following reliefs against the Defendants: [2] RELIEFS SOUGHT BY THE PLAINTIFF a. An order for the 1st and 2nd Defendants to pay the Plaintiff cash sum of five hundred and fifty-four thousand, eighty pesewas (GH¢554,080.00 (sic) ), being the outstanding amount to be paid to Plaintiff. b. An order restraining the 1st Defendant’s servants, workmen, agents and assigns from removing or sailing the 3rd Defendant Vessel. c. Interest on the amount till time of final payment. d. Damages for breach of contract. e. Costs. [3] FACTS OF THE PLAINTIFF’S CASE JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 2 [ii] According to the Plaintiff, on or about the 7th of June 2018, it entered into an agreement with the 1st Defendant for the supply of 324,000 litres of gas oil at an agreed price of Gh¢3.00 per litre. Pursuant to the said agreement and on the following day therefore, i. e. on or about the 8th of June 2018, the Plaintiff stated it advanced a total amount of Gh¢972,000.00 to the Defendants, representing the full and final payment for all the 324,000 litres of gas oil to be delivered to the Plaintiff. [ii] Under the terms of the agreement, the 1st Defendant was to deliver the products at the Tema port from the 9th to the 10th day of June 2018. The 1st Defendant however failed to deliver the products in accordance with the agreement and only supplied to the Plaintiff, 27,000 litres of gas oil valued at Gh¢81,000.00. [iii] The Plaintiff, acting through its Managing Director, made the 1st Defendant aware of the breach of contract by the 1st Defendant’s failure to deliver the products and the 1st Defendant was said to have pleaded for time to supply the remainder of the products to the Plaintiff. The 1st Defendant thus later delivered a total of 54,000.00 litres valued at Gh¢162,000.00 to the Plaintiff and also refunded an amount of Gh¢81,000.00 to the Plaintiff. [iv] In total, the 1st Defendant has delivered 108,000 litres of gas oil valued at Gh¢324,000, out of the 324,000.00 and for which the Plaintiff paid Gh¢972,000.00 to the Defendants. Per the Plaintiff, the 1st Defendant still owes the Plaintiff an amount of Gh¢554,080.00 consequent to the 1st Defendant’s failure to deliver the entirety of the products agreed upon to the Plaintiff. JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 3 [v] Thus, per an undertaking dated the 1st of August 2018, the 2nd Defendant was said to have issued a guarantee in favour of the 1st Defendant and undertook to assume the liabilities of the 1st Defendant up to a total of Gh¢648,000.00 under the agreement. The 2nd Defendant subsequently issued a post-dated cheque of Gh¢669,600.00, for the Plaintiff to fall on in case of further breach of the agreement. On or about the 6th of August 2018, the Plaintiff contended that it had cause to present the Defendants’ post-dated cheque to the bank, because the 1st Defendant had still not delivered the goods, as promised; but the said cheque was dishonoured. [vi] Thereafter, all efforts made by the Plaintiff to make the Defendants pay the outstanding balance to the Plaintiff have proved futile and so the Plaintiff stated it was compelled to institute this action for the reliefs enunciated above and as endorsed on the writ of summons. [4] DEFENCE PUT FORTH BY THE DEFENDANTS [vii] As is usually the case, the Defendants denied each and every averment contained in the statement of claim, contending instead that the Plaintiff did not exist and that even if it did, this action instituted against the Defendants was statute barred by virtue of the Revenue Administration Act, 2016 (Act 915) because the Plaintiff did not have a Tax Identification Number. JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 4 The Defendants further contended that the alleged contract upon which the Plaintiff’s present action is founded is illegal, again because the Defendants stated that at the time of the said contract, the Plaintiff was said not to have acquired the requisite license from the National Petroleum Authority to undertake any gas oil ( and its related products) business. [viii] The Defendants continued to state that the Plaintiff misrepresented to the 1st Defendant that it had the requisite license to purchase the gas oil, when the Plaintiff knew or ought to have known that it did not have the said license to engage in the gas oil business. In that regard, the purported guarantee or undertaking issued by the 2nd Defendant is null and void, in view of the inherent illegalities in the contract. [ix] Moreover, the undertaken given to the Plaintiff by the 2nd Defendant was obtained by direct harassment, unlawful intimidation and duress exerted on the Defendants by the Plaintiff. The Defendants thus particularized the harassment, intimidation and duress as follows: [5] PARTICULARS OF HARASSMENT, INTIMIDATION AND DURESS a) Falsely causing the arrest of the 2nd Defendant for the offence of issuing dud cheques and defrauding when the Plaintiff knew or ought to have known the purported cheques were not to be presented for encashment. b) Coercing the 2nd Defendant to sign the post – dated cheques by threats of criminal prosecution and false imprisonment. JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 5 c) Never-ending and inane calls by the Plaintiff particularly telephone calls by the Managing Director of the Plaintiff demanding immediate payment of the debt; d) Threat of violence by the Managing Director of the Plaintiff to sell all the properties of the Defendants and ensure total collapse of their business unless they pay all the debt. e) The 2nd Defendant says that as a result of the unlawful intimidation by the Plaintiff, his health is fast deteriorating as his blood pressure has exacerbated to unmanageable limits and the 2nd Defendant fears suffering complete heart failure unless this Honourable Court intervenes to compel the Plaintiff to abate its conduct. [x] The intimidation and harassment caused to the 2nd Defendant has resulted in the 2nd Defendant suffering severe psychological trauma due to the incessant and unethical calls on the Defendants to pay the purported debt. The above notwithstanding, the Defendant stated that the Plaintiff has not acknowledged the several payments made by the 1st Defendant to the Plaintiff, including payments to the Police when the Plaintiff falsely caused the arrest of the 2nd Defendant to compel him to refund or payment to the 1st Defendant. The Defendants contended that they had fulfilled all obligations towards the Plaintiff and therefore counterclaimed for the following: [6] COUNTERCLAIMS OF THE DEFENDANTS JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 6 a. A declaration that the purported transactions between the parties is null and void on grounds of illegality. b. Punitive damages against the Plaintiff for perpetuating illegality on the Defendants. c. Punitive damages against the Plaintiff for unlawful harassment and intimidation. d. Cost on full indemnity basis including Lawyers’ fees. e. Any other remedy that the Court may deem fit. [7] PLAINTIFF’S REPLY AND DEFENCE TO COUNTERCLAIM [xi] The Plaintiff filed a Reply and a defence to the counterclaim, joining issues with the Defendant on their admissions but vehemently denying the contentions in the defence. The Plaintiff denied that its action was statute barred and cited the TIN numbers of the Plaintiff and even that of the Plaintiff’s Managing Director in the Reply. Plaintiff added that it had a franchise with another company, Humano Energy and that franchise afforded the Plaintiff the opportunity to enter into such contracts as it did with the 1st Defendant herein. The transaction between the parties was therefore not illegal, the Plaintiff added. [xii] Additionally, having taken such huge sums of monies from the Plaintiff and having refunded only Gh¢81,000.00 to the Plaintiff, the Plaintiff stated the Defendants were estopped from now contending that illegalities were attached to the contract they had participated in. Among other denials therefore, the JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 7 Plaintiff prayed the Court to dismiss the counterclaims of the Defendant and instead grant the Plaintiff’s claims. Pleadings then came to a close. 8. APPLICATION FOR DIRECTIONS [xiii] At the Directions stage, the following issues were set down for trial by the Plaintiff’s Counsel: 1. Whether or not there was a contract between the Plaintiff Company and the Defendant Company for the supply of gas oil products. 2. Whether or not the Defendants’ failure to supply the agreed total gas oil products constitutes breach of contract on the part of the Defendants. 3. Whether or not the 1st Defendant and the 2nd Defendant are jointly and severally liable by virtue of the undertaking signed by the 2nd Defendant. 4. Whether or not the Plaintiff is entitled to the reliefs. 5. Any other issues. [xiv] The following Additional Issues were also filed by the Defendant’s Counsel: ADDITIONAL ISSUES: JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 8 1. Whether or not the Plaintiff is a registered Petroleum Company legitimately to undertake any gas oil related products business either selling or buying. 2. Whether or not the contract between the Plaintiff and the Defendants was tainted with illegality. 3. Whether or not the purported guarantee issued to the Plaintiff was by way of mistake. 4. Whether or not the action is statute barred by the Revenue Administration, Act 2016 (Act 915). The parties were ordered to file their respective witness statements and they did. 9. WITNESS STATEMENT OF THE PLAINTIFF’S REPRESENTATIVE [xv] The Plaintiff’s Managing Director testified for and on behalf of the Plaintiff, and for ease of reference, we shall refer to the Plaintiff’s representative as PW1. PW1 reiterated the averments in the Plaintiff’s Statement of Claim and Reply earlier filed. He restated the contentions that the Defendants did not supply the entire quantum of gas oil as per the contract entered into by the parties. PW1 therefore tendered in evidence the said agreement as Exhibit A and further tendered in evidence Exhibit B, an undertaking said to have been signed by the 2nd Defendant as a guarantee for any breach of contract the 1st Defendant may subsequently incur against the Plaintiff after the 1st Defendant failed to deliver the entirety of the gas oil paid for after the 10th June 2018 deadline. JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 9 A copy of the cheque for the amount stated in the undertaking was also tendered in evidence as Exhibit C, and which was said to have been dishonoured. Among other narrations in support of the Plaintiff’s case, PW1 prayed the Court for the reliefs endorsed on the writ of summons because he stated the Defendants owed the Plaintiff the total amount of money endorsed on the writ with interest and costs. [xvi] The Plaintiff called PW2, who informed the Court that he introduced the Plaintiff’s Managing Director to the 2nd Defendant and he was thus aware of the contract to supply the Plaintiff with 324,000 litres of gas oil. PW2 also confirmed the assertions of PW1, that the Defendants failed to fulfil their obligations to supply the quantum of gas oil paid for by the Plaintiff, and as a result, the Defendants are indeed indebted to the Plaintiff to the tune of the amount claimed. 10. WITNESS STATEMENT OF THE DEFENDANTS [xvii] The 2nd Defendant (D2) filed a witness statement for and on behalf of the 1st Defendant and D2 denied that the contract as per Exhibit A had not been performed. This is what D2 had to say in his witness statement at paragraph 3 following: “3. … On the basis of the representations of Mr. Ali Adam, Exhibit A, attached to the Plaintiff’s witness statement was executed. There was no performance by parties under the Agreement because we discovered the representations made by Mr. Ali Adam to us were false. JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 10 4. Indeed, we discovered that Mr. Ali Adam under the rubric of the Plaintiff has been engaging in illegal petroleum trading with third parties especially within Tema and Takoradi enclave. 5. In fact, the Plaintiff did not perform under the Agreement. I mistakenly issued the purported deed of undertaking as I thought the Plaintiff was entitled to the claims it was making against the Defendant Company. My Lord, the Plaintiff is not entitled to any claim at all to warrant the action. (Emphasis is mine) Among others, D2 prayed the Court to dismiss the Plaintiff’s claims and instead, grant the counterclaims of the Defendants herein. 11. INTERVENING MATTERS [xviii] During the trial, however and at the close of the Plaintiff’s case, the Defendants, well within their rights, opted not to testify and neither was the witness statement of the 2nd Defendant tendered in evidence as hearsay evidence; and so the trial came to a close after PW2 had been cross-examined. [xix] Further, during the pendency of the trial and after the cross-examination of PW1, the Plaintiff’s Counsel sought to re-examine the witness in order to seek to tender in evidence some documents; and Counsel for the Plaintiff further sought to have PW1 recalled in an attempt to tender in evidence those same documents. The Defendants’ Counsel vehemently opposed the applications made by the Plaintiff’s Counsel, on the grounds, among others, that the Plaintiff now seeks to repair its case after it had been discredited under cross- examination by the Defendants’ Counsel. JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 11 [xx] This Court, after hearing all the applications, at the various times, upheld the objections of the Defendants’ Counsel as it appeared to the Court that it was rather too late in the day for the Plaintiff to seek to tender in evidence some documents which had always been in the Plaintiff’s custody at all material times, especially after questions had been posed on same to discredit the Plaintiff under cross-examination. The duty of this Court is therefore to determine the issues set down for trial and also to determine whether or not each side is entitled to their claims. 12. THE INCIDENCE OF THE BURDEN OF PROOF IN CIVIL CASES [xxi] This is a civil case and the principles of law set out to govern civil trials is as laid out at sections 12(1) to 14 of the Evidence Act, 1975, NRCD 323; and also as held in the consolidated cases of RICKETTS AND ANOTHER v. ADDO AND OTHERS AND RICKETTS v. BORBOR AND OTHERS [1975] 2 GLR 158-169 as follows: “…The burden of persuasion which a plaintiff has to satisfy in every civil case is no more than proof on a balance of probabilities.” Also, in OWUSU v. TABIRI AND ANOTHER [1987–88] 1 GLR 287–293, Mensah J. held that “It is a trite principle of law that he who asserts must prove …” [xxii] The onus of adducing evidence thus first lay on the Plaintiff herein to prove on a balance of probabilities that he was indeed entitled to the reliefs he sought. JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 12 Again, in the case of Bank of West Africa Ltd. v Ackun [1963] 1GLR 176 – 182, Sarkodee – Addo JSC stated thus: “…The party who in his pleadings raises an issue essential to the success of his case assumes the burden of proof . . . The issue must be proved by the party who alleges the affirmative in substance, and not merely the affirmative in form.” Further in the case of Ackah v Pergah Transport Limited [2010] SCGLR 728, the Supreme Court held that: It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. This is a requirement of the law on evidence under sections 10 and 11 of the Evidence Decree. [xxiii] Finally, Viscount Dunedin in Robins v. National Trust Co [1927] AC 505 at 510 (PC) held: JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 13 “Onus is always on a person who asserts a preposition or a fact which is not self-evident. To assert that a man who is alive was born requires no proof. The onus is not on the person making the assertion because it is self- evident that he had been born. But to assert that he was born on a certain date, if the date is material requires proof: the onus is on the person making the assertion. Now in conducting any enquiry, the determining tribunal will often find that onus is sometimes on the side of one contending party, sometimes on the other side, or, as it is often expressed, that in certain circumstances onus shifts”. 13. THE BURDEN OF PROOF ON A COUNTER CLAIMANT [xxii] The Defendants have also counterclaimed for some reliefs and so they equally bear the burden of establishing that they are entitled to their counterclaims. In Bullen & Leake and Jacob's Precedents of Pleadings (12th Edition) at pp. 96-97, it was stated: "A counterclaim is substantially a cross-action, and not merely a defence to the plaintiff’s claim. It is a cross-claim which the defendant may raise in the very action brought against him by the plaintiff, instead of himself bringing a separate, independent action against the plaintiff. JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 14 The right to maintain a counterclaim was first introduced by the Judicature Act 1873, and the procedure by counterclaim has been greatly extended in its operation and application by the rules, so that as far as practicable, the counterclaim is assimilated to the position of a statement of claim indorsed on a writ of summons.” (Emphasis is mine) It has also been held that the current Ghanaian provisions on counter-claims set out in Order 12 of the High Court (Civil Procedure) Rules 2004 (CI 47) retain this quintessential principle. The above was the holding of Date-Bah JSC in GIHOC Refrigeration v Hanna Assi (Civil Appeal No. J4/11/2005) of 1st February 2006. [xxiii] Likewise, the case of Aryeh & Akakpo v. Aya Iddrisu [2010] SCGLR 891 at 901, in which the Supreme Court again reiterated the burden of proof on a counterclaimant as follows: "A party who counter-claims bears the burden of proving his counterclaim on the preponderance of the probabilities and will not win on that issue only because the original claim failed. The party wins on the counterclaim on the strength of his own case and not on the weakness of his opponent's case.” 14. EVALUATION OF THE EVIDENCE ADDUCED AT THE TRIAL VIS – A – VIS THE LAW [xxiv] From the entirety of the evidence adduced at the trial, there is no doubt that the Plaintiff and the 1st Defendant herein entered into an agreement for the supply of gas oil. The Plaintiff tendered in evidence the said agreement as Exhibit A without any objection from the Defendants herein. JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 15 The Defendants, I find, do not dispute Exhibit A, save that they contend that the Plaintiff did not have the requisite license to trade in gas oil and also that the Plaintiff did not perform its obligations under the said agreement, Exhibit A. Also, at paragraphs 6 to 13 of the Plaintiff’s statement of claim, the Plaintiff averred the following: 6. The Plaintiff avers that on 8th day of June 2018, it advanced a total amount of Nine Hundred and Seventy-Two Thousand Ghana Cedis (GH¢972,000.00) to the Plaintiff representing the full and final payment for all the 324,000 litres of gas oil to be delivered to the Plaintiff. 7. The Plaintiff avers that under the terms of the Agreement, the 1st Defendant was to deliver the products, Delivery-at-Place (DAP) Tema from the 9th to the 10th day of June 2018. 8. The Plaintiff avers that 1st Defendant failed to deliver the products in accordance with the terms of the Agreement but only supplied Twenty-Seven Thousand (“27,000”) litres of gas oil which was valued at Eighty-One Thousand Ghana Cedis (“GH¢81,000.00”). 9. The Plaintiff says that, acting through its Managing Director, made the 1st Defendant aware of the breach of contract by the 1st Defendant’s failure to deliver the Products but the 1st Defendant pleaded to supply the remainder of the Products to the Plaintiff. 10. The Plaintiff says that, the 1st Defendant later delivered a total number of Fifty-Four Thousand (“54,000.00”) litres valued at One JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 16 Hundred and Sixty-Two Thousand Ghana Cedis (“GH¢162,000.00”) to the Plaintiff. 11. The Plaintiff says that the 1st Defendant also refunded an amount of Eighty-One Thousand Ghana Cedis (GH¢81,000.00) to the Plaintiff. 12. The Plaintiff says that the 1st Defendant has delivered a total number of One Hundred and Eight Thousand Litres (l08,000 litres) valued at an amount of Three Hundred and Twenty-Four Thousand Ghana Cedis (GH¢324,000). 13. The Plaintiff says that the 1st Defendant owes it a total amount of Five Hundred and Fifty-Four Thousand, Eighty Pesewas (GH¢554,080.00 (sic) ) as a result of the 1st Defendant’s failure to deliver the total Products to him. The above constitute the entirety of the Plaintiff’s case. [xxv] The Defendants, in their defence, denied the above paragraphs and further alleged illegality against the Plaintiff herein. The Defendants added at paragraph 9 of their defence that the Plaintiff’s claims are misconceived, especially where the Plaintiff had not acknowledged the several payments made by the 1st Defendant to the Police when the Plaintiff caused the arrest of the 2nd Defendant. The Defendants, therefore, I find, admit that they have made some repayments to the Plaintiff herein and the Defendants added that they owed the Plaintiff no further obligation. JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 17 Furthermore, even though the 2nd Defendant did not testify in Court, the Plaintiff was aware of the testimony of the 2nd Defendant in his witness statement and wherein he had denied that the Plaintiff performed its obligations under the said agreement, Exhibit A. [xxvi] In spite of the constant denials of the 1st Defendant herein, that it ever received the stated sum, PW1 and 2 consistently stated that the 1st Defendant had been fully paid an amount of Gh¢972,000.00 and yet I find no documentary proof was adduced by the Plaintiff for the said payment to the 1st Defendant. The payment of an amount of GH¢972,000.00 is very easily capable of positive proof; and yet having been aware of the insistent denials after the filing of the 2nd Defendant’s witness statement, I find that no other evidence was sought to be adduced at that stage. I believe it is in that regard that the Plaintiff, per his Counsel sought to recall PW1 and further sought to file a supplementary witness statement for PW1, and which said applications were unsuccessful. Having established the above, I proceed to deal with the issues set down for trial as follows: 15. ADDITIONAL ISSUE 4 - Whether or not the action is statute barred by the Revenue Administration, Act 2016 (Act 915). [xxvii] In the Defendants’ statement of defence, it was averred at paragraph 3 thus: JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 18 3. In answer to paragraph 1 of the Statement of Claim, the Defendants say that the Plaintiff does not exist and the present suit is barred by the Revenue Administration Act, 2016 (Act 915) as the Plaintiff does not have a Tax Identification Number. Counsel for the Defendants did not cite the section upon which the Defendants were relying to make the above assertion; but I find that the reason canvassed by the Defendants for the suit being statute barred was because of the lack of TIN number(s). The Plaintiff, in its Reply cited the TIN numbers of both the Plaintiff and that of PW1 and it was not refuted by the Defendants. Further, no other evidence was adduced by the Defendants to establish that the Plaintiff’s action is statute barred; and so I find that the assertion that the Plaintiff’s claims are statute barred remains unjustified and unproven and therefore dismissed. I proceed to deal with the following issue: 16. ADDITIONAL ISSUE 1 - Whether or not the Plaintiff is a registered Petroleum Company legitimately (sic) to undertake any gas oil related products business either selling or buying [xxviii] The above issue, I find, is not worthy of discussion because no evidence was led by the Defendants, who challenged the capacity of the Plaintiff to undertake the gas oil (and its related) products business. The Plaintiff contended that it had a franchise with Humano Energy Ltd, which had the requisite licence, and that allowed the Plaintiff to undertake the gas oil transaction. Not having JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 19 adduced any evidence on same, the Plaintiff was under no obligation to refute the assertions of the Defendants herein. In the case of Fordjour v Kaakyire [2015] 85 GMJ @page 67, it was held: “…It has to be noted that the court determines the merits of every case based on legally proven evidence at the trial and not mere allegations or assertions in the pleadings. A bare assertion without adducing evidence in support of that assertion is not evidence to require denial in cross-examination by an opponent.” See Dzaisu & Ors v Ghana Breweries Ltd [2007-2008] SCGLR 539. In the circumstances, the above issue is dismissed in favour of the Plaintiff herein. I continue to deal with the following issues: 17. ISSUE 1 AND ADDITIONAL ISSUES 2 & 3 - Whether or not there was a contract between the Plaintiff Company and the Defendant Company for the supply of gas oil products. - Whether or not the contract between the Plaintiff and the Defendants was tainted with illegality. - Whether or not the purported guarantee issued to the Plaintiff was by way of mistake. [xxix] The issue of whether or not there was a contract between the Plaintiff company and the Defendant company ought not to have been set down as an issue JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 20 because all the parties are ad idem on that fact, that there was indeed an agreement for the supply and delivery of gas oil. The Plaintiff tendered in evidence Exhibit A without any objection from the Defendants; and the Defendants indeed admitted executing the said Exhibit A. This issue is therefore of no consequence. [xxx] With respect to whether or not the said contract was tainted by illegality, I once again find that the Defendants made bare assertions as to illegality without any evidence whatsoever. In the statement of defence, the Defendants, in describing the alleged illegality of the Plaintiff contended at paragraphs 6 and 7 thus: “6. In answer to paragraphs 3 to 19 of the Statement of Claim, the Defendants say that the purported contract on the basis of which the claim is founded is illegal as the Plaintiff did not have the requisite licence by the National Petroleum Authority to undertake any gas oil related products business either buying or selling. 7. In further response to paragraph 3 to 19 of the Statement of Claim, the Defendants say that the Plaintiff misrepresented to the 1st Defendant that it had licence to purchase the gas oil, when the Plaintiff knew or ought to have known that it did not have the requisite licence to engage in the business." [xxxi] The Defendants added that the undertaking signed by the 2nd Defendant and a cheque issued as a guarantee to the Plaintiffs were both extracted by duress, harassment and intimidation and same were thus issued by mistaken. JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 21 The production of the undertaking and the cheque (Exhibits B and C) were, in effect, not to be taken as an admission of liability against the Defendants. Illegality, like mistake is a vitiating factor and it is trite that an agreement, a contract, an order, a judgment, an undertaking and all things can be set aside on grounds of fraud, mistake or any vitiating factor. In the case of Ayiwah & Another vrs Badu & Others [1963] GLR 86-101, the Supreme Court held: “… that once it appears to the Court that the transaction offends against any provision … so that it is illegal, a trial judge is bound to have regard to the illegality and make the necessary consequential order. [xxxii] It is also the case that the burden of establishing a plea of mistake falls on the party seeking to avoid a document or agreement signed by him and he must show that in signing the document he was not careless or negligent in so doing. See the case of Quao vrs Squire [1978] GLR 270 – 279. On account of the fact that the Defendants opted not to testify before this Court and adduce evidence in support of their averments, I find that there is no evidence to support the claims of illegality and mistake made by the defendants herein. [xxxiii] Moreover, in the present case, the Plaintiff stated it had a franchise from Humano Energy Ltd but the Defendants did not adduce any evidence to dispute same. Also, as earlier stated no iota of evidence was adduced by the Defendants herein in support of their assertions of illegality and mistake and so I make no findings of fact in that regard in favour of the Defendants herein. I will then proceed to deal with the gravamen of the issues before this Court as follows: JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 22 18. ISSUES 3, 4 AND 5 - Whether or not the 1st Defendant and the 2nd Defendant are jointly and severally liable by virtue of the undertaking signed by the 2nd Defendant. - Whether or not the Plaintiff is entitled to the reliefs. - Any other issues. [xxxiv] The Plaintiff herein, I find, was unable to produce the franchise it is said to have had with Humano Energy Ltd and perhaps, the entire transaction may have been tainted with some illegality due to the absence of the franchise before this Court; but I have no doubt whatsoever in my mind that the Plaintiff paid some sums of money to the Defendants herein because from the facts of this case, it is clear that the Defendant made some supply to the Plaintiff and also refunded an amount of Gh¢81,000.00 to the Plaintiff. The Defendants, also, at all material times, denied that the Plaintiff had fulfilled its obligations as stated in Exhibit A and so it was the duty of the Plaintiff to establish to this Court that it indeed paid the amount of GH¢972,000.00. PW1, therefore, under cross-examination gave the answers below in support of his witness statement: Q: You intimated to this Court at paragraph 7 of your witness statement that an amount of GH¢ 972,000.00 was paid to the Defendant. A: Yes, my Lord. JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 23 Q: And the said amount was full and final payment of 324,000 litres of gas oil to be delivered to the Plaintiff. A: Yes, my Lord. PW2, the Plaintiff’s witness also gave the following answers under cross- examination in support of the assertion that the said sum of Gh¢972,000.00 was paid to the 1st Defendant as follows: Q: It is also your evidence before this Court that the Plaintiff paid an amount of GH¢972,000.00 to the 1st Defendant representing full and final payment of all the 324,000 litres of gas oil to be delivered to the Plaintiff, not so? A: That is so my Lord. [xxxv] Nonetheless, the Plaintiff was unable to adduce any evidence in support of the payment of the said monies and PW1, under further cross-examination gave the answer below: Q: Kindly show this Court the receipt of the said amount paid to the Defendant. A: I don’t have it now, but I can produce it next adjourn date. Even if I don’t have the receipt I can produce the bank statement that shows that I have it. (sic) JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 24 Q: I put it to you that no transaction took place for which the 2nd Defendant paid you some money and also delivered 13,500 litres of gas oil to the tune of Gh¢40,500.00. A: That is not true. I received the money from him through the Police when he was arrested. Q: I also put it to you that as of today, the 1st and 2nd Defendants do not owe you any sum of money. A: That is not true. The above were the answers of PW1 on the 28th of October 2021 under cross- examination. PW1 thus answered that he was going to bring the requisite receipt or bank statement showing the said payment on the next Court date, but there is no proof that on the next Court, PW1 produced any such evidence. Instead, cross-examination continued and was completed and that was when the Plaintiff and Counsel for the Plaintiff sought to re-examine the PW1 and also seek to file a supplementary affidavit all in an attempt to tender in evidence the said proof of payment of Gh¢972,000.00 to the 1st Defendant; but which said attempts were declined and overruled by this Court on account of the circumstances under which the Plaintiff’s Counsel had sought to tender the documents in evidence and also based on the objections raised. [xxxvi] PW2 also gave the answers below under further cross-examination: JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 25 Q: it is also your evidence before this Court that the Plaintiff paid an amount of GH¢972,000.00 to the 1st Defendant representing full and final payment of all the 324,000 litres of gas oil to be delivered to the Plaintiff, not so? A: That is so my Lord. Q: And in your entire witness statement to this Court, you did not attach any such payment made by the Plaintiff to the Defendant, not so? A: No my Lord. Q: I therefore put it to you that no such payment was ever made to the 1st Defendant as full and final payment of 324,000 litres of gas oil, I put it to you. A: That is not true, my Lord. From the answers of PW1 and 2 and in the light of the denial of the Defendants, I find that I am left in doubt as to whether or not the Plaintiff did pay such a huge amount of money to the 1st Defendant, since the Plaintiff is unable to produce adequate proof before this Court. It is trite, as held in the case of Deliman Oil Company Ltd v HFC Bank Ghana Ltd [2016] 92 GMJ at page 4 per the Supreme Court that: JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 26 The very well-known rule of evidence is that proof lies upon him who affirms or alleges, and not upon him who denies, since, by the nature of things, he who denies a fact cannot produce any proof. Furthermore, the doubt in the mind of this Court is further compounded by the following questions posed to PW1 under cross-examination: Q: At the last adjourned date you intimated to the Court that the plaintiff advanced an amount of Gh¢972,000.00 to the 1st Defendant representing the full and final payment for all the 32,400 litres of gas oil to be delivered. A: Yes, my Lord. Q: And that the 1st Defendant initially supplied only 27,000 litres of gas oil to the Plaintiff valued at GH¢81,000.00, not so? A: Yes, my Lord. Q: And the 1st Defendant later supplied another 54,000 litres of gas oil valued at Gh¢162, 000.00. A: Yes, my Lord. Q: And the 1st Defendant later refunded an amount of Gh¢81,000.00 to the Plaintiff; not so? A: Yes, my Lord. JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 27 Q: You will agree with me that the summation of Gh¢81,000, Gh¢162,000.00 and additional Gh¢81,000 will be Gh¢324,000.00. A: Yes, my Lord. Q: When you deduct the Gh¢324,000 from the Gh¢972,000.00 you will be left with Gh¢648,000.00. A: It may be true. Q: So this will be the amount remaining at the time of the last supply? A: It may be true. [xxxvii ] Indeed, the said cheque and undertaking were duly tendered in evidence as Exhibits B and C and both indeed bear different sums of monies: Gh¢648,000 and Gh¢669,600 respectively, without any explanation from the Plaintiff as to the discrepancies in the figures. Moreover, from the calculations as per the pleadings and witness statement of the Plaintiff and PW1, the amount said by the Plaintiff to be allegedly outstanding was Gh¢648,000.00 before the action was instituted. Then at paragraph 20 of PW1’s witness statement, he averred: 20. The Defendants delivered the said 13,500 litres of the product value at forty thousand and five hundred Ghana Cedis (GH¢40,500.00) to the Plaintiff Company as agreed. JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 28 Subtracting Gh¢40,500.00 from Gh¢648,000.00, there ought to be a purported balance of Gh¢607,500.00 and yet the Plaintiff herein is claiming an amount of Gh¢554,080.00 as endorsed on the writ of summons and an amount of Gh¢513,580.00 as per paragraphs 21 of PW1’s witness statement and paragraph 13 of PW1’s witness statement. There is once again no explanation from the Plaintiff nor the Plaintiff’s witnesses as to the difference in the figures. [xxxviii] It is only in the written address of the Plaintiff’s Counsel that he sought to explain by submitting thus and I quote the relevant portion: “It is the Plaintiff’s case that the 2nd Defendant paying part of the debt shows that the 2nd Defendant respects the sanctity of the contract between the parties and is therefore estopped to claim that the contract is misconceived. The Plaintiff testified that after the commencement of the suit, the 2nd Defendant met him at Takoradi and promised to supply Thirteen Thousand, Five Hundred (13,500) litres of the Product to the Plaintiff Company, which the Plaintiff also agreed to. The Plaintiff further testified that the Defendants delivered the said Thirteen Thousand, Five Hundred (13,500) litres of the product value at Forty Thousand and Five Hundred Ghana Cedis (GH¢40,500.00) to the Plaintiff Company as agreed. The Plaintiff led evidence to the effect that the Defendants now owe the Plaintiff a total amount of Five Hundred and Thirteen Thousand, Five Hundred and Eighty Ghana Cedis (GH¢513,580.00) as a result of the Defendants’ failure to deliver the total Products to the Plaintiff. (Emphasis is mine) JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 29 Hence the Plaintiff is left with no choice than to ask this Honourable Court to compel the Defendants to pay the outstanding amount, interest on that amount as well as damages for breach of contract and costs.” I however see no evidence adduced to support the Plaintiff’s assertions and the amount claimed, contrary to Counsel’s submission as stated above. I am thus left in doubt as to the amount the Plaintiff allegedly paid to the 1st Defendant, the amount said to have been refunded by the Defendants. I again finds that there is also some confusion surrounding the amount said by the Plaintiff to be due it; and this confusion must inure to the benefit of the Defendants, bearing in mind the defence of denial of the Defendants. [xxxix] The Defendants’ Counsel in his written submission also reiterated the discrepancies in the Plaintiff’s case when he submitted as follows and I quote the portions referred to: “My Lady respectfully, the Plaintiff 2nd Witness was posed with similar questions and this is what transpired during cross examination on the 8th day of February 2024 at page 6. (sic) Q: It is your testimony to this court that the 1st Defendant refuse to perform the obligation arising under the agreement and only supplied 27,000 litres of gas oil which was valued at 81,000.00 not so? A: Yes, my Lord based on the agreement. JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 30 Q: And as you sit in the witness box, you have nothing attached to your witness statement to show that 1st Defendant only paid you an amount of GHS 81,000.00 representing the 27,000 litres, not so? A: No, my Lady. As I sit here no but indeed paid an amount to the Plaintiff's first witness. Q: It is also your testimony to this court that the Defendant refunded an amount of GHS 81,000.00 to the Plaintiff after persistent demands, not so? A: Yes, my Lord. Q: And as you sit in the witness box you do have anything attached to your witness statement showing that the defendant only refunded GHS 81,000, not so? A: No, my Lord, but indeed refunded GHS 81,000 after a lot of persistence. My Lady, at page 8 of the cross examination of Plaintiff 2nd witness, on the 8th of February 2024 this is what ensued: Q: It is also your testimony that some payments were made to the Plaintiff by the Defendant and also delivered 13,500 litres of the products valued at GHS 40,500 which as delivered by the defendant to the plaintiff at Takoradi not so? JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 31 A: Yes, my Lord. Q: So from what you just read from paragraph 13, it means there were additional payments to the 13,500 litres of products valued at 40,500 which was delivered by the defendant to the Plaintiff, not so? A: Yes, my Lord. Your Ladyship also at page 8-9 of the cross examination of Plaintiff 2nd witness on the 8th of February, 2024 this is what ensued Q: You will agree with me that in your entire witness statement you do have anything to show the total amount received and the total amount of gas oil delivered by the 1st Defendant to the Plaintiff. A: That is not so. Q: Kindly take a look at your witness statement and show this court evidence of the total amount received by way of gas oil from the defendant to the Plaintiff as well as amount received by way of money paid to the Defendants to the Plaintiff. A: There is no summation of terms of total amount cash paid or products received but based on my witness statement these two can be derived from it. JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 32 My Lady, based on the foregoing, it is evident that the Plaintiff has failed to discharge the burden of proof that there was a contract between the parties for the supply of 324,000 liters of gas oil to be supplied by the 1st Defendant to which the 1st Defendant has breached. This Honourable Court is therefore being invited to dismiss Plaintiff's claim with respect to the above two issues under consideration.” [xl] The Defendants’ Counsel further submitted: “My Lady, if indeed the 1st Defendant owed the Plaintiff money, then it presupposes that the undertaken must equal the amount that the 1st Defendant owed the Plaintiff, not more. My Lady, per Plaintiff's own showing at paragraph 13 of its Statement of Claim, the 1st Defendant owed the Plaintiff an amount of GH¢554,080.00 because it was purportedly unable to deliver the entire set of products (324,000 litres) of gas oil. Further to, in Plaintiff's own Statement of Claim at paragraphs 14 and 15, the undertaking provided by the 2nd Defendant was GHS 648,000.00, significantly exceeding the GHS 554,080.00 and the post-dated cheque provided by the 2nd Defendant was GHS 669,600.00, significantly above the GHS 554,080.00. … My Lady, from the totality of the above cross examination firstly demonstrates the acting and inconsistency evidence of Plaintiff's testimony. In one breadth Plaintiff allegedly claims that 1st Defendant owed an amount GHS 554,080. In other breadth, Plaintiff says the 1st Defendant is indebted in the sum of GHS 513,580.00, in another breadth Plaintiff JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 33 says the 1st Defendant is indebted in the sum of GHS 648,000.00 to which the 2nd Defendant presented a post-dated cheque for GHS 669,6000 which is significantly more than the amount owing…” I agree with the submission above and would rely on the case of IBM v HASNEM [2001 - 2002] SCGLR 393 at 402, where the Supreme Court, per Adzoe JSC, held: “It is one thing pleading a cause and repeating it in court, and another thing providing evidence in support of the cause so pleaded…” and hold that in my candid opinion, satisfactory evidence was not adduced by the Plaintiff to enable this Court arrive at the conclusion that the Plaintiff is entitled to the amount sought on the writ of summons. I am thus unable to make a positive finding of fact that the Defendants are jointly and severally liable to the claims of the Plaintiff. 19. CONCLUSION [xli] From the entirety of the evidence adduced before this Court, I hold that undeniably, some transaction went on between the parties and in the face of the lack of evidence adduced by the Defendants in support of their averments of illegality and mistake, if indeed there is some amount due the Plaintiff, then the Defendants ought to repay same. I however find that it is the exact quantum said to have been paid to the Defendants that is in issue, as well as the fuel supplied and the outstanding balance due the Plaintiff; and the Plaintiff, in my candid opinion, did not adduce sufficient evidence in support of its claims. JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 34 [xlii] Right in the statement of defence, the Defendants denied receiving the said sums, refuted the amount owing and stated the undertaking issued by the 2nd Defendant was extracted by duress, harassment and intimidation. In my candid opinion, it was at that stage that the Plaintiff ought to have amended and attached the proof of payment to the 1st Defendant as well as the various correspondence relating to the non-supply and the outstanding amount due the Plaintiff, if any; but unfortunately, save the agreement and the said undertaking, no iota of evidence was adduced by the Plaintiff to establish that it is entitled to that specific amount of money claimed. I am at a loss as to why a Plaintiff would come to Court without the requisite evidence in support of its case. [xliii] In the case of Nartey v Mechanical Lloyd Assembly Press Ltd [1987 - 1988] 2 GLR 314, the Court held as follows: "A person who comes to Court, no matter what the claim is, must be able to make a good case for the Court to consider, otherwise he must fail." Indeed, the Defendant did not testify and therefore also did not adduce any evidence whatsoever to establish that the undertaking the 2nd Defendant signed was extracted by intimidation and harassment, for instance, and/or that the cheque was issued under a mistake. Nonetheless, the Defendants’ Counsel’s questions under cross examination and the answers proffered by the Plaintiff’s representative (PW1) and the Plaintiff’s witness (PW2) leave me in doubt, as to exactly how much is indeed owing and due the Plaintiff herein. Without the requisite documentary proof JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 35 from the Plaintiff, I am unable to satisfactorily come to the conclusion that the Plaintiff is entitled to the amount endorsed on the writ of summons. [xliv] Additionally, in the case of Yormewu v Awote [1987 - 1988] 1 GLR 10, the Court again held that: "At the close of the case if the judge comes to the conclusion that the plaintiff's case is weak and that of the defendant's too is weak, the judge cannot prefer the plaintiff's weak case to that of the defendant and it would be wrong to grant the plaintiff the reliefs he seeks." I unfortunately cannot conjure an amount for the Defendants to pay to the Plaintiff; and so I find that I would have to dismiss the Plaintiff’s claims. The Defendants are also not entitled to the grant of their counterclaims as they failed to discharge the onus placed on them to establish their counterclaims as if same were the claims of a Plaintiff. The Defendants shall also not be entitled to costs as their claims of illegality against the Plaintiff remained largely unproven. The Defendants’ counterclaims are thus dismissed. There shall be no order as to costs. SGD. JUSTICE PATRICIA QUANSAH JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 36 HIGH COURT ‘B’ TEMA GREATER ACCRA REGION. 23RD OF JULY 2024. COUNSEL: FRED SETH THOMAS MIREKU JNR ESQ. HOLDING EDWIN KUSI APPIAH’S BRIEF FOR THE PLAINTIFF PRESENT EUGENE WIREDU ESQ. FOR THE DEFENDANTS JULY 2024 – JUDGMENT – LISS PETROLEUM VRS GENERAL SHIPPING & 1 OR 37